Public Hearing on Proposed Rule )
Criteria and Procedures for Proposed )
Assessment of Civil Penalties )
Pages: 1 through 115
Place: Birmingham, Alabama
Date: September 28, 2006
UNITED STATES OF AMERICA
DEPARTMENT OF LABOR
MINE SAFETY AND HEALTH ADMINISTRATION (MSHA)
Public Hearing on Proposed Rule )
Criteria and Procedures for Proposed )
Assessment of Civil Penalties )
Thursday
September 28, 2006
Birmingham Ballroom I
Sheraton Birmingham Hotel
2101 Richard Arrington, Jr. Boulevard, North
Birmingham, Alabama
The above-entitled matter convened for public hearing, pursuant to notice, at 8:00 a.m., PATRICIA W. SILVEY, Acting Director, Office of Standards, Regulations and Variances, MSHA, presiding.
PANEL MEMBERS:
JAY MATTOS, Acting Director of Assessments
PETER MONTALI, Office of Metal and Nonmetal
Mine Safety and Health
WILLIAM CROCCO, Office of Coal Mine Safety
and Health
KEITH WATSON, Office of Assessments
JACK POWASNIK, Office of the Solicitor
ROBERT STONE, Economic Analysis Division
I N D E X
TESTIMONY OF PAGE
Wesley Pierson 17
Larry Turner 19
Jeremy Eaton 25
Ricky Dunn 28
Joe Weldon 30
Herbert Cordell 36
Lester Barnes 37
Rodney McGough 38
James Blankenship 41
Thomas Wilson 71
Guy Hensley 94
James Blankenship 109
Guy Hensley 109
P R O C E E D I N G S
MS. SILVEY: Good morning.
VOICES: Good morning.
MS. SILVEY: My name is Patricia W. Silvey; I'm the Acting Director of the Office of Standards, Regulations and Variances for the U. S. Department of Labor's Mine Safety and Health Administration. And before we get started with this hearing this morning, I would like it if you would all join with me in a moment of silence in memory.
We as a country have just remembered September 11, 2001, and remembered not only the many Americans and other people were killed on that day, but, also, the many workers who responded. And some 12 days later, we were tragically touched by another accident in the mining industry, at the Jim Walters Mine in Alabama.
And so if you would, join with me in a moment of silence in memory of the miners who were killed that day, the ones who died immediately and the ones who died doing some of the same things that happened on September 11, and that is: Going in, responding and trying to rescue their fellow workers. So I'd appreciate it if you would do that, please.
(Pause.)
MS. SILVEY: Thank you.
I will be the moderator of this public hearing today on MSHA's proposed rule concerning civil penalties.
The members of the panel are: To my right, Jay Mattos, who is the Acting Director of the Office of Assessments and who is the chair of the Civil Penalty Committee; Pete Montali, who is from MSHA's Metal and Nonmetal Mine Safety and Health office and also on the committee; and, to his right, Keith Watson, who is from MSHA's Office of Assessments; to my left, Jack Powasnik, who is with the Department of Labor's Office of the Solicitor and is the attorney on the committee; and, to his left, Robert Stone.
Robert Stone is the Chief Economist for MSHA, and he is in my office. And to his left is William Crocco. And he is from MSHA's Coal Mine Safety and Health Office, and he is representing coal on the committee. And not least I don't want to forget her in the audience, we have Gerry Gunn. And Gerry Gunn is the regulatory specialist on the committee, and she's in my office.
This is the second of six hearings on this proposed rule. The first hearing was held, as many of you probably know, on September 26 in Arlington. The third hearing will be held October 4 in Salt Lake City; the fourth, October 6 in St. Louis; the fifth, October 17 in Charleston, West Virginia, and, the sixth, October 19 in Pittsburgh.
The comment period for the proposal closes on October 23. In accordance with the MINER Act, MSHA must issue regulations related to the penalty provisions of the MINER Act by December 2006. So that time frame it is sort of a short time frame for MSHA to do that portion of the rulemaking. We will accept documents today if you would like to submit any for the record.
This hearing will be conducted in an informal manner. Formal rules of evidence will not apply. Members of the panel may question witnesses; witnesses may ask questions of the panel. Scheduled speakers will make their presentations first. After that, others will be allowed to speak.
The transcript for this hearing will be posted on the MSHA website within a week.
Before I discuss provisions of the rule, I will give you a short overview of the civil penalty process, beginning with the clarification of four terms that are used throughout the rulemaking. The first term is "citation." The inspector, as many of you know, issues a citation for a violation of any MSHA standard, rule, order, safeguard or regulation. The inspector sets the time to abate the condition.
The second is an "order." The inspector issues an order under a number of different circumstances: When the violation is not abated within the time set by the inspector, or any extensions of time; when the inspector finds a violation caused by an unwarrantable failure of the mine operator, and; when an inspector determines that an imminent danger exists. In that case, an order requires withdrawal of the affected miners until the violation is abated. The order may not necessarily require that the entire mine be shut down; only that area affected by the violation.
"Significant and substantial." An S&S violation, as many of you know, is one that is reasonably likely to result in reasonably serious injury or illness. The inspector makes the S&S determination at the time of the issuance of the citation.
And, finally, "unwarrantable failure." This has been defined by case law to be aggravated conduct, constituting more than ordinary negligence.
Under the MINER Act, MSHA proposes penalties and the review commission assesses penalties. A proposed penalty that is not paid or contested within 30 days of receipt becomes a final order of the Commission by operation of law and is not subject to review by any court or agency. Penalties that are contested before the Commission are reviewed de novo. We will use the term "assessment" to refer to MSHA's proposed assessments, as well as assessments that are final orders of the Commission.
The Mine Act requires MSHA and the Commission to consider six criteria in assessing civil penalties, and they are: The appropriateness of the penalty to the size of the business; the operator's history of previous violations; whether the operator was negligent; the gravity of the violation; the operator's good faith in abating the violation, and; the effect of the penalty on the operator's ability to continue in business.
The first five criteria are applied to compute the penalty amount. The final criterion is applied after the penalty is proposed, upon request by the mine operator. The operator must send in supporting documents which show that the penalty would negatively affect the company's ability to continue in business. MSHA will review this information and may adjust the penalty.
MSHA published the proposed rule in the Federal Register on September 8. A copy was placed on MSHA's website and sent to the Small Business Administration's Office of Advocacy..
The proposed rule basically does two things. First, it revises MSHA's civil penalty program to increase penalty amounts and to improve the effectiveness of the civil penalty process. These changes are intended to induce greater mine operator compliance with the Mine Act and MSHA's safety and health standards and regulations, thereby improving safety and health for miners.
Second, the proposal implements three provisions of the Mine Improvement and New Emergency Response Act of 2006, which I earlier referred to as the MINER Act. The proposal does not change and I emphasize, does not change the way inspectors issue citations. Under the proposal, inspectors would make factual determinations with respect to safety and health violations and will issue citations and orders as they do now.
Also, please note that while both the Mine Act and the MINER Act contain provisions for criminal fines, as the name implies, this proposal deals with civil penalties. Under the existing rule, MSHA has three types of assessments: Single, regular and special. I will now address proposed changes to each type.
The existing rule provides for a $60 single penalty for non-S&S violations, timely abated, and where the operator does not have an excessive history of violations. The Agency proposed to delete the single penalty provision and believes that eliminating this provision will cause mine operators to focus their attention on preventing all hazardous conditions.
Regular assessments, the second type of assessment, are derived by assigning points for the statutory criteria and then converting the total points to a dollar amount. The penalty point tables are published in Part 100.3 of the rule.
Regular assessments are computer-generated through MSHA's Management Information System. The proposed rule would make a number of changes to the process the table used for determining penalties. The point tables would be revised so that the penalties increase proportionately to increases in operator size, history and negligence, and the gravity or seriousness of the violation.
The regular assessments changes are:
Size. The size criterion includes the operator size and controller size. For coal mines, operator size is measured by tonnage of coal produced by the mine during the previous calendar year. For metal and nonmetal mines, operator size is measured by hours worked at the mine during the previous calendar year. Size for independent contractors is measured by the total hours worked at all mines during the previous calendar year.
Under the proposal, the maximum number of points for operator size would increase from ten to 20. The proposal would continue to assign no points for the smallest operators, and that is: Coal mines that produce up to 15,000 tons of coal, metal and nonmetal mines with 10,000 or fewer hours worked, and independent contractors who have worked up to 10,000 hours at all mines.
Please note, also, that the preamble to the proposed rule states that according to 2005 data, nearly half of the existing coal mines had actual tonnage of up to 15,000 tons. This figure, however, included 463 surface facilities that do not produce coal. So, excluding those non-producing facilities from the total amount of coal mines provides more accurate data.
And with this revision then, approximately one-fourth of producing coal mines have annual tonnage up to 15,000 tons, versus one-half. Not one-half.
The proposal makes no changes to size points for controlling entities. In the proposal, MSHA solicited comments on whether in considering the size of the operator greater weight should be placed on the size of the controlling entity. And I invite you to address this issue at this public hearing today or in your written comments.
History of violations. The proposal includes several changes to the history criterion: Shortening the time period for determining violation history; changing independent contractor history from an annualized number to the total number of violations; adding a new component to history for repeat violations of the same standard, and; increasing the maximum number of history points.
Under both the existing rule and the proposal, only violations for which the penalty has been paid or finally adjudicated are included in determining an operator's history. Under the proposal, also, the time period for determining history would be shortened from 24 months to 15 months. MSHA believes that this shorter time period would more accurately reflect an operator's current status of safety.
Both the existing rule and the proposed rule base history for production operators on violations per inspection day. Under the existing regulation, history for independent contractors is based on the average number of violations over the past two calendar years; the proposed rule would change this and use the total number of violations during the previous 15 months.
And since history would no longer be based on 24 months, MSHA does not believe there is any need to annualize the number of violations for independent contractors. And also, MSHA believes that this change would have a de minimis effect on the average assessment issued to independent contractors.
In the proposal, MSHA solicited comments on this approach to determining violation history for independent contractors, and that is: Whether an annualized average should continue to be used or whether MSHA should do it using the total number of violations during the previous 15 months.
Again, I invite you to address this issue in your comments. The maximum number of penalty points for this component of violation history would be increased from 20 to 25.
Significantly, he proposal adds a new component to the history criteria; that component would be repeat violations of the same standard. Under the proposal, penalty points are added for more than five repeat violations of the same standard during the preceding 15 months.
In the proposal, repeat violations are determined according to the manner in which the violation is cited. And let me give you an example.
A violation of Metal/Nonmetal Standards Section 56.14101(a)(1) would not be considered in determining the number of previous violations of 56.14101(a)(2). MSHA solicits comments on this approach to determining repeat violations. Penalty points are assigned for the total number of repeat violations during the previous 15-month period.
In the proposal, MSHA solicited comments on two additional aspects of repeat violations: Whether penalty points should be based on the total number of repeat violations, as in the proposal, or on the number of repeat violations per inspection day, and; whether repeat violations should include all violations, as in the proposal, or only S&S violations.
We invite you to address these aspects of repeat violations. This component of violation history would add up to 20 penalty points.
The next criterion is negligence. The proposed rule would retain the existing five levels of negligence and would double the maximum number of penalty points that could be assigned for negligence, from 25 to 50, with the increase placed entirely in the three highest levels. Under the proposal, penalties would increase proportionally for operators who exhibit increasingly high levels of negligence.
The next criterion is gravity. The proposed rule would retain the three components of gravity likelihood, severity and the number of persons potentially affected but would increase the maximum number of penalty points that could be assigned for each component. The maximum total gravity points would increase from 30 to 88.
Good faith in abating the violation. The existing rule adds ten penalty points if the operator does not abate the violation within the time specified by the inspector and reduces the total penalty amount by 30 percent if the violation is timely abated. The proposal would decrease the reduction for timely abatement to 10 percent. Under the proposed rule, no penalty points would be added for violations that are not timely abated.
Penalty point conversion table. The dollar amounts on the existing conversion table range from $72 to the statutory maximum of $60,000. The statutory maximum corresponds to 100 penalty points. The minimum regular assessment is $60. The proposed rule provides a maximum of 208 penalty points.
The revised conversion table begins with $112. The dollar amount of the penalty increases steadily as the number of penalty points increases. Beginning at 133 points, each additional penalty point corresponds to an increase of approximately $3,070; the maximum penalty of $60,000 is reached at 140 points.
Special assessments are processed where the violation is of such a nature that an appropriate penalty cannot be determined using the regular formula. The existing rule lists certain categories of violations, such as fatalities, serious injuries, and unwarrantable failure, that must be reviewed to determine if a special assessment is appropriate.
However, under the proposal, MSHA would retain its discretion to determine which types of violations would be reviewed for special assessment without being limited to a specific list. This change will permit MSHA to focus its enforcement resources on more field enforcement activities rather than on administrative review activities.
The proposed rule would shorten the time allowed to request a health and safety conference with the district manager. Existing 100.6 allows ten days; the proposal would shorten the time to five days. MSHA believes this reduction would result in a more effective civil penalty system, because penalties would be assessed closer in time to the issuance of the citation.
Finally, as I mentioned earlier, the proposal implements the civil penalty provisions of the MINER Act. Although these provisions are included in this proposal, they were effective on June 16. In addition, the Agency has issued a procedure instruction letter to MSHA personnel containing information for processing violations consistent with the MINER Act. I will briefly discuss the provisions in the MINER Act.
Unwarrantable failure citations and orders. The Act establishes minimum penalties of $2,000 and $4,000 for unwarrantable failure citations and orders, respectively. The proposal includes these two provisions.
Penalties for flagrant violations. The MINER Act established a new penalty of not more than $220,000 for flagrant violations, and those violations are defined in the MINER Act as involving a reckless or repeated failure to make reasonable efforts to eliminate a known violation of a mandatory health or safety standard that substantially and proximately caused or reasonably could have been expected to cause death or serious bodily injury. These violations are processed as special assessments.
Failure to notify. The MINER Act establishes a penalty of not less than $5,000 and not more than $60,000 for failure to timely notify MSHA in the case of death or an injury or an entrapment with the reasonable potential to cause death. As stated earlier, these violations are processed as special assessments.
For those of you who haven't done so, we would like it if you would please sign the attendance list in the back of the room before you leave. As I stated earlier, we will post transcripts of all the public hearings on our website. Each transcript will be there approximately one week after the hearing. It will include the full text of the opening statement and the specific issues for which we seek additional comment.
We will now begin. And please begin by clearly stating your name and organization for the reporter.
Our first speaker today will be Wesley
Help me, Wesley.
MR. PIERSON: Wesley Pierson.
MS. SILVEY: Pierson?
MR. PIERSON: Pierson.
MS. SILVEY: I couldn't see the P.
MR. PIERSON: I'm sorry.
MS. SILVEY: That's okay.
Wesley Pierson, UMA Local 2245.
MR. PIERSON: Yes, ma'am.
MS. SILVEY: Excuse me just one minute.
(Pause.)
MS. SILVEY: Okay. I'm sorry.
MR. PIERSON: Okay. My name is Wesley Pierson, and I'm a 47-year-old coal miner with 29 years of experience. I work at Jim Walter Number 4 Mine, and I'm a mine committeeman at Local 2245, UMA.
In reading the MSHA proposed rules, I found it impossible for me to make meaningful comments. This is because of the vagueness throughout the proposed rules. The proposed rules are full of examples. I will give you one such example.
On page 53063, MSHA states that the limitation is based on the evaluation of the agent's data and a review of the experience gained. MSHA provided none of the data, and MSHA did not explain how experience yields these conclusion.
In reading the proposed rules, I found throughout, "MSHA believes," or, "We believe." But then MSHA offered no factual records for the changes. I cannot accept this proposed rule simply because, "MSHA believes."
In 1985, MSHA released a press statement saying that they were creating MSHA District 11 to curb mine accidents in Alabama. I want to remind everybody that the creation of MSHA District 11 did not work out like MSHA believed it would. There has not been a single year under MSHA District 11 that Alabama has not had a fatality.
In 2001, Alabama had the worst mine disaster in the United States since 1984. Alabama's last mine fatality was my co-worker and friend, Gary Jones. History has proved to me that MSHA is not correct when they, "Believe."
With the above stated, I also want to state for the record that I am against MSHA eliminating all single penalty assessments and MSHA's factoring in a number of inspection days for repeat violators. Thank you.
MS. SILVEY: Thank you, Mr. Pierson.
Our next person is Larry Turner, also of UMA 2245.
MR. TURNER: Good morning.
VOICES: Good morning.
MS. SILVEY: Good morning.
MR. TURNER: As was stated, my name is Larry Turner. I work at the Jim Walter Resources Number 4 mines, Brookwood, Alabama. I'm 50 years old, with approximately 20 years of experience in the coal mines. I'm a member of the safety committee at our mines. Thank you for this opportunity to speak on the proposed rule changes, first on page 53063 at Number 4 on that page, determination of penalty, single penalty assessment, 100.4 of the MINER Act, a document that was written in 1977 for the safety and health of all coal miners.
This document was written with the blood of coal miners past. To delete the single penalty assessment provision in 104.4 of the Act the MINER Act would give a way for coal operators to circumvent most if not all so-called non-S&S violations.
Congress may be convinced by this cleverly disguised document that by deleting the single penalty provision, it will cause mine operators to focus their attention on preventing all hazardous conditions before they occur or promptly correct those violations that do occur, but those of us that work and toil in the coal fields know that this is just not true.
At this time, I would like to ask you panel members why and how this change, in your words, or delete, in your words, will help and not hinder the health and safety of all coal miners in one of North America's deepest mines, which I work.
MS. SILVEY: Okay. You are asking us
MR. TURNER: My question is: How will deleting this 100.4 help me and my people at my mines?
MS. SILVEY: Okay. We I want to clarify for the entire audience that we proposed the Agency proposed to delete the civil penalty but not delete any penalty but that there would continue to be a penalty for non-S&S violations. It's just that the penalties for non-S&S violations would be treated through the regular assessment process. And it actually would be a higher penalty.
And so that is why the Agency thought that by making this change, the focus would be it would create a greater inducement for our operators to focus more on all the violation and give the same attention to S&S and non-S&S alike. So we are deleting the single penalties to where they are treated as a separate category now and given a $60 penalty.
The all violations, S&S and non-S&S, would be processed through the regular formula system. All the criteria apply to them all the five criteria that I read in my opening statement. And that is what led us to conclude that, but we are here today to take your testimony if you believe differently than that.
MR. TURNER: That is, Madam, about as clear as the tax provisions that we're locally now under, which is it takes a Philadelphia lawyer and a crew to figure out this table of contents. But I'll take your answer, and I will move on to the second thing I
MS. SILVEY: No. I do want people to understand what we had in mind when we did that, you know. Right okay.
MR. POWASNIK: Were you under the impression that by eliminating the single penalty, we were eliminating a penalty completely?
MR. TURNER: No.
MR. POWASNIK: Oh. Okay. But and you did understand that by eliminating the $60 penalty, a penalty for a non-S&S violation would go through the regular assessment?
MS. SILVEY: The assessment.
MR. POWASNIK: And what we are proposing now is $112 as the lowest penalties or it would be $112 and up higher from that.
MR. TURNER: Okay. So let me add one more
MS. SILVEY: You know, I guess the thing I want to underscore because I know how it can be with regulations. And agencies put out so many regulations. So I do want and I clearly understand.
I do want to underscore that we said, Delete the single penalty. And I'm so I'm saying it again. But those violations will get a penalty.
And as Jack said about that, they will get under this proposal, they will end up getting a higher penalty. So, you know, we want to leave you and it's because of that that they would be processed for a higher penalty. It's because of that that we thought that would lead to a better safety.
MR. TURNER: The next comment I would like to make is on the proposed rule is on page 53058, "c. History of previous violations," 100.3(c): "The operator's violation history on the number of violations received in a preceding 24-month period for which a civil penalty has been paid or finally adjudicated."
To change this law from 24 months to 15 months would be a disgrace to all who work and toil in the nation's coal fields. All of our nation's co-operators currently have on retainer at least one two-bit attorney that is capable of making sure their more meaningful violations are not paid or, in your words, finally adjudicated within a 15-month period.
In my opinion, this change would not provide an incentive for improving safety and health, but provide the coal operators of America, large or small, a way of escape.
Third, MSHA also solicits comments on whether, in determining penalty points for repeat violations of the same standard, the Agency should factor in the number of inspection days during which the repeat violations were cited.
In my opinion, the amount of inspections should not determine the gravity or the penalty of the violation. The amount of the inspections in any given quarter or, currently, 24-month period must not determine how a violation would be viewed. A violation is a violation no matter how many inspections have been made.
I would like to take this opportunity to thank you for allowing me to speak on these topics. I only hope that this hearing is much more fruitful than the meeting on September 15, 2005, with District Manager Richard Gates, concerning the removal at our mines of head-gate shields. While this meeting was being conducted, the approval for the plan was being faxed to our mines.
MSHA was created to protect the health and safety of American coal miners; however, this Agency is now being run by ex-coal operators or their attorneys. This new group of MSHA leaders are only interested in the gifts they can give to the coal operators, not my health and safety. This proposed rules change is nothing short of a cleverly disguised gift for coal operators.
I have one more thing that I would like to read. It's in a document that is titled "A Brief History of the UMA."
"The United Mine Workers' history is full of legendary and often tragic names. The Molly Maguires, the Lattimer Massacre and the Ludlow Massacre, Matewan and the Battle of Blair Mountain, Paint Creek, Cabin Creek and Buffalo Creek and Bloody Harlan are some of many legendary stories that have been handed down in the oral history of mining families.
"Despite the threat of physical harm and economic ruin, miners have consistently struggled against great odds to achieve their goals: The 8-hour work day in 1898, collective bargaining rights in 1933, health and retirement benefits in 1946, and health and safety protections in 1969."
I thank you for your time. And I only hope and pray that this hearing is not something just short of getting out and seeing people, but taking to mind what we as miners go through on a day-to-day basis. Thank you.
MS. SILVEY: Well, thank you, Mr. Turner.
(Applause.)
MS. SILVEY: Thank you, sir.
Next we will have Jeremy Eaton, UMA Local 2245.
MR. EATON: My name is Jeremy Eaton I'm the vice president of Local 2245. I work at Jim Walter Resources Number 4 mine, Bloodwood, Alabama. I'm 29 years old, with nine-and-a-half years mining experience.
On page 53063, MSHA is proposing to delete the single penalty assessment provision. In 2005, Number 4 mine had around 330 citations. Of the 330 citations, 205 were single penalty.
The Agency comments on 53063 on determination of single penalty assessment that by deleting the single penalty provision, it will cause mine operators to focus their attention on preventing all hazardous conditions. I am here today to tell you that the statement, "Eventually, we believe," is not strong enough in meaning, nor does it have any supporting facts.
On page 53058, MSHA is proposing to reduce the 24-month review period to a 15-month review period. In this, you are letting coal companies have a chance to get off the hook.
I know that in our mines, we had a fatality five months ago. And the citation just went to the first step of conference last week. The worst lawyer in the state of Alabama could drag the process out longer than 15 months. And the only citations that can be repeat violations had to be paid for or fully adjudicated. So if a company can drag its feet longer than 15 months, you can't use the citations against them.
Then you go on to say that the provision would not affect smaller mines. I personally find this very disturbing in the fact that I started my career in a small mine. For the three years I spent in a small mine, the dangers were more than in the big mines.
When a cop doesn't give you a speeding ticket, he doesn't ask you if you're lower or middle or upper class so he can adjust your fine; it's level across the board. So should MSHA.
I feel that all violations must be considered in determining repeat violations and that the Agency should not factor in the number of inspection days during which the repeat violations were cited. I also feel that should our operator choose to contract out our work, the contractor would see less points and penalties than if our people kept doing the job, which would lead to companies contracting out work to save on penalties, thus putting us in harm's way.
Before I leave here today, I have to say one more time: Throughout this provision, MSHA states, "We believe," time and time again, with no facts to support the provision. If the provision is as strong as you say, why would you not say, "It will change"? Thank you for your time.
MS. SILVEY: Thank you, sir.
MR. MATTOS: Excuse me, sir. I just chat with me. I have just a question or two. Going back to the single penalty, you said you had 205 at the mine last year?
MS. SILVEY: 330.
MR. MATTOS: And if I understand you correctly, you're saying that you would rather that those 205 remain under the proposed rule, continue to get that single penalty, as opposed to a higher penalty?
MR. EATON: I would prefer that MSHA use the tools they have now. They I don't even feel that MSHA uses the tools that's under the way we have it now. That's the reason why I said that. I don't even think that the way the MSHA inspectors do their citations now is up to par to the authority that they have.
FEMALE VOICE: Excuse me. When the panel asks questions, could you be a louder? We can't hear back here.
MR. MATTOS: Oh. Okay.
MR. EATON: Is that it? Thank you, ma'am.
MR. MATTOS: Yes. Thank you.
MS. SILVEY: Thank you.
Our next witness will be Ricky Dunn, UMA Local 2245.
MR. DUNN: Good morning.
MS. SILVEY: Good morning.
MR. DUNN: My name is Ricky Dunn. I work the Number 4 Mine in Bloodwood, Alabama, Local 2245. I have 30 years in the coal mines, and I'm presently on the safety committee.
I'm here today to talk about the new provisions by MSHA. I would like to start by commenting on page 53063, paragraph 5, unwarrantable failure. In this provision, MSHA wants to take out language from the 1977 MINER Act. The 1977 MINER Act was put in place for the protection of coal miners so your agency could hold companies accountable.
So I ask you. After the years of blood and sweat of the writing of the '77 MINER act, are you not taking the teeth out of this part of the Act?
Also, nowhere in the provision have you shown any support facts that will stand behind the what I call a death warrant you are proposing. We have for many years fought companies for our health and safety, but today, it seems, the way I read this, we're also fighting you.
On page 53060, MSHA shows the old point system and the new point system. MSHA is not using the tools they presently have available to them, for example, for the number of people affected on citations. Time and time again, they only use one person affected when in fact, in many cases, there's many more people affected or that should be affected. If you cannot properly use the tools you have today, I ask how will you use the tools you have in this provision?
I disagree with contracting out work. This proposed rule places less penalties on contractors than on the coal operators. I disagree with this in that this results in a financial incentive for a coal operator to contract out work. I believe this will result in more accidents and injuries.
I disagree with just using S&S citations for repeat violations. All citations should be used. And I thank you for your time.
MS. SILVEY: Thank you very much. I would just like to say one thing, sir, to you as a clarification. And that is and I'm glad to have your testimony on the repeat violation issue, because the proposal does include all citations. And we asked the question of whether it should be S&S only. So thank you for your comments.
We next have Joe Weidon
MR. WELDON: Weldon.
MS. SILVEY: of UMA.
MR. WELDON: Good morning.
MS. SILVEY: Good morning.
MR. WELDON: I find it a privilege to address you this morning. My name is Joe Weldon, and I'm a member of the United Mine Workers of America Local 1948. I'm on the safety committee. I've been in coal mines 27 years; I'm 46 years old. That's pretty much all I've known. I've lost a father underground in the coal mines from a roof fall, and I've lost an uncle. So I know something about the struggles and going through hard times.
And I was involved in mine rescue. I was at Jim Walter Number 5 during the recovery of those 13 bodies the 12 guys that died there. So I know something about struggle.
And so I'm familiar with that and the struggles of miners in the industry, what they go through. And even though I'm a younger guy, I've been there and I've seen a lot of things that was pretty rough sometimes.
And what I wanted to address was the 100.6 where it would reduce the time from ten days to five days to submit additional information. And I don't think that that warrants enough time for us to get together for conferences and stuff, because not only as part of being a full-time coal miner, a husband, on the safety committee, executive board committee and trying to get those things together, sometimes that time frame all runs together.
Dealing with issues at the mine site and even away from you know, while you're at home, you still get calls, and you still get things that you try to work out. And this time frame, I think, don't allow us enough time. And I'd like to see more time. I know we need to work things out speedily, but when we're talking about men's and women's lives and what's involved and you have to look those people in the face every day and know that you've done a good job and you wanted to serve the men well we feel like this time frame should not be reduced. And if anything, add to it.
And I'll submit the chair to someone else. And I thank you for your time. If there's any questions
MR. CROCCO: Could I ask a question?
MR. WELDON: Yes, sir.
MR. CROCCO: How much time do you think would be adequate if ten days is not enough?
MS. SILVEY: He said five days is not enough.
MR. WELDON: If ten days is not enough, I'd say 15.
MR. CROCCO: All right. Well
MR. WELDON: I think that that would but we definitely don't want the reduction.
MS. SILVEY: You don't want the reduction. Right.
MR. WELDON: Anything from anybody else?
(Pause.)
MR. WELDON: I thank you for your time.
MR. MATTOS: I have a question.
MR. WELDON: Okay.
MR. MATTOS: This is on the ten- and five-day thing. Thanks for the comments. If would it what about if we split that so the intent was to speed up the assessment process.
MR. WELDON: Exactly.
MR. MATTOS: And we're looking for ways to do that, but we don't want to
MS. SILVEY: Harm
MR. MATTOS: around here.
MS. SILVEY: Yes.
MR. MATTOS: What about if requesting if the conference had to be requested within five days, but the amount of time you're allowed to submit additional information up to when you have a conference, for example? I mean I'm just a question.
MR. WELDON: No. I think that we'd like to stick with that.
MR. MATTOS: Okay. Thank you.
MR. WELDON: Thank you very much.
MS. SILVEY: Thank you, sir.
Randall Green next, UMA.
MR. GREEN: My name is Randall Green, and I currently serve as the president of Local 1948 at the Shoal Creek mines, Drummond Company. And I'd like to make a statement. I'm also a member of the safety committee.
Of course, I support an increase in the penalties that we're proposing today. And also, I'd like to comment. In our mines, we've had a lot of accidents. Last year, we had a charged fatality. Also, it seems like the operators made the decision it's cheaper to pay the fines than to try to correct.
Also, it's important that labor and management work closer together. And I don't know the incentive should be that we should be able to make things safe and try to lessen our violations. But in trying to deal in the last few months and meeting with the management, it seems like we're wide apart between our safety committee and trying to do the things we need to do.
Also, we want to try to get the people in the mines aware of what's going on. The safety committee continuously tries to meet with management in trying to reduce the number of citations we have at the mine, because it's important, and but we're failing to do this.
And we're also aware that management has retained a large group of attorneys there to fight these fines and increases. We see that they're reduced in most cases before they even go to court. We've got a lot of serious decisions at our mines. And February 24, we had an explosion in our mines, and thankfully we didn't have any fatalities.
These fatalities we could have had a greater number than we had seen at the Jim Walter mine. And since then, the safety committee at our mines has made every effort to try to work with management to reduce these things. In fact, up to that time, we had a full-time safety committee that management supported. But the first thing they done they done away with a full-time safety committee because we wanted to make an effort to reduce the fines or the violations at our mines and to have safer mines.
So at some point, we've got to have an incentive for people to work closer together to reduce these things. These are things that we should do. We should be able to correct the situation at our mines, and we should be able to sit down with management and try to look at these situations and correct them and so that we don't have this loss of life and have the things that we've happened in our mines.
And I appreciate it. And if there's any questions, I'll be glad to answer them.
MS. SILVEY: No, sir, I don't have any questions. But I would like to use your comments as to pick up on your comments and say something, and that is: I agree with you. And I think we as an agency agree with you that one of the and, you know, hopefully, we strive to do this every day.
And you mentioned management and labor working together to reduce violations and to correct hazardous conditions and improve safety, and I would like to add in MSHA working with labor and industry to do that. And as I said at the first hearing that we had, you know, our ultimate goal, quite honestly, is that there be no violative conditions. And if there were no violative conditions, then, hopefully, there would be no or very few injuries and illnesses, and no fatalities.
So and I you know, despite the we have the Mine act and all of that. But I think one of the core tenets of the Mine Act, just as you said, is that all parties work together to reduce hazards in the mine and work place. So I we agree with you there.
MR. GREEN: Well, thank you, ma'am.
MS. SILVEY: Thank you.
Our next person will be Herbert Cordell.
MR. CORDELL: Good morning.
MS. SILVEY: Good morning.
MR. CORDELL: My name's Herbert Cordell; I'm a member of the Local Union 2133, where I serve as vice president of the local and chairman of the safety committee. I have 38 years mining experience. And I would like to object, also, to the proposed change to 100.6(b), which reduces the number of days to submit additional information or request a conference.
Like this gentleman said, we're full-time coal miners, husbands, fathers and grandfathers. And along with that, we deal with safety issues on a daily basis at the mines. We review plan change submittals that the company makes. And I just don't think that we have time to fit this in in the reduction of days there.
And that's about all I have. Thank you, ma'am.
MS. SILVEY: Thank you.
MS. SILVEY: Is there anybody else? These are the names of the speakers that I have on the speakers' sign-in list. Is there anybody else in the audience who wishes to speak?
(Pause.)
MR. BARNES: I apologize for my dress; I worked last night in the coal mine and then came down here for this hearing. My name's Lester Barnes. I've got 26-1/2 years in the coal mine. I am currently the chairman of our safety committee in our mines. In the Bloodwood Number 5 mine, we lost the 13 men in that devastating coal mine explosion.
I'd like to ask the Commission. What is the exchange rate on the price of a ton of coal versus the life or a limb or a disease contracted by violations of operators allowed to continue to take place in our coal mines? What is the exchange rate for that?
Long after the MSHA inspector leaves our coal mines, we have two other shifts that come on board and work in this environment ten hours a day six days a week. The size of the operation should have no bearing on the amount of penalties that are assessed because of the citations that are issued because of the violations of the standard.
The size has nothing to do with how many people are going to be injured because of those violations that take place. And I would like for you to consider as you go over these comments to realize that the number of hours that a MSHA inspector spends underground versus the number of hours of the men and women who work in the coal mines there's no comparison to it.
We live underground. We see our co-workers more than we see our own families. We face the dangers of the industry a lot more than the inspectors who come in and inspect our coal mines and more than the people who make the assessments and make the changes in MSHA policies regarding those citations and violations that occur.
So I want to ask you to consider as you go over these things, remember that those men and women who are underground just about live there 24 hours a day seven days a week. Thank you.
MS. SILVEY: Thank you.
(Pause.)
MS. SILVEY: Good morning.
MR. McGOUGH: My name's Rodney McGough. I work B&M North River mine, Local 1926. And I object to 100.6(b). We need more time because you know, you all are wanting to reduce it to five days. And ten days is not enough a lot of the time and because, you know, we have other jobs to do. I work in the mines, plus I'm vice president of our local, on the organizing, and, you know, hold other jobs. And we need more time to look over these things.
And, two, on like your contractors you know, the fines is reduced on them than it is the coal operator. Well, if you all keep doing that, that's going to put my people out of work. Already you can see the mines is full of contractors now where I work and taking my people's jobs. You need to raise the fines on them.
And it's just not right. If you all raise the fines on the company and not the contractors, my people's going to be on the street. And that ain't going to get it. The contractors need to be fined more. That's about all I've got for right now.
MR. MATTOS: Can you all hear me now?
VOICES: Yes.
MR. MATTOS: Okay. Thank you. I have just one question, or maybe it's more of a comment on the independent contractors. I want to make it clear to those here that the penalty structure for independent contractors the citations and orders issued to contractors is exactly the same as it is for the operators with the exception of the size of the business and then some of the history pieces. And that's strictly a function of the information we have on independent contractors.
MR. McGOUGH: Yeah.
MR. MATTOS: But the penalty structure and I think you understand. Now, we it was not our intent and it isn't our intent to minimize the penalties for contractors at all.
MR. McGOUGH: See, this it was just like this awhile back. The inspector wrote a citation on a contractor on our property. This contractor hazard-trained his person, his employee. The inspector wrote a citation on him because this contractor is not part of the management. That citation got thrown out. Some of you-all's people, you know, higher up than where you all is said he had the right to hazard-train his employee on our company's property and him not being employed with this company.
You know, we're living down there. You know, that's not right. One of our company employees should have hazard-trained this person, but, you know, some of you all said he was legal by doing that. But in the book, the way I read it, he don't have that right to do it. But the citation got thrown out. He didn't have to pay a dime.
MR. MATTOS: Okay. Thank you.
MR. McGOUGH: See, when you get stuff going like that right there, that's going to put my people on the street. Thank you.
MS. SILVEY: Okay. Excuse me. Before you leave and later if you could do that to me that particular citation you were talking about could you is there some way you could get us that number or send it to us or something?
MR. McGOUGH: I can get you a copy of it.
MS. SILVEY: You can get a copy?
MR. McGOUGH: Yes, ma'am.
MS. SILVEY: Okay. We'll get it from you? Okay. I would
MR. McGOUGH: I appreciate it.
MS. SILVEY: look into that. Okay. Thank you.
(Pause.)
MS. SILVEY: Good morning.
MR. BLANKENSHIP: Give me one second.
MR. MATTOS: Take your time.
MR. BLANKENSHIP: My name is James A. Blankenship; I'm president of the United Mine Workers Local 2245, District 20, here in Alabama. I'm employed at Jim Walter Resources Number 4 mines as an underground electrician.
I've got almost 32 years in the mines. I worked in small mines and started out my life in West Virginia, and then I worked with Jim Walters. I'm a third-generation UMA coal miner, and I've got a son that works at Pin Oak. That makes him a fourth-generation miner.
So I've got a lot at stake here. I've got a few more years, and then I'm going to retire. I've got a son that's going to be there, hopefully, another 30 years or so before he retires. So this means a lot to me. I feel that, you know, if we allow this to go through, I'll probably sign his death warrant along with you all for lack of enforcement. I don't see it in these regs today.
I want to comment before I really get into the meat of what I want to do, I want to comment on your opening statements a little bit. Through your opening statements, several times, you said, MSHA believes. You even added it a few times where the written document doesn't say it that MSHA believes but you added, "MSHA believes," with no proof to show why you believe that.
I went through this document extensively the last three days. I don't can't find and don't see what MSHA believes is going to happen. And I'm going to get into that later on, but I wanted to bring that up before I moved on about how even in your opening statements several times, it's, "Believes," not facts, not that it's going to happen, but, We think it might happen.
We can't put miners' lives on a, "I think it might happen," or, "I believe it might happen," because I'm going to tell you what'll happen. We'll have fatalities.
I'm here today to talk to you about several points of the proposed rule which I feel greatly lessen the health and safety of the miners that MSHA is supposed to protect. The proposed rules are full of statements like, again, "We believe," or, "MSHA believes." There's no evidence to back these statements up.
I can tell you what I know, and that is: On September 23, 2001, 13 miners lost their lives at the Jim Walter Number 5 mines because of the lack of enforcement by MSHA. And the proposed rules does nothing to make the mines safer. To tell you how strong I feel about the statement I just made, I'm dressed in black today to respond in respect for the miners who will lose their lives in this nation's coal mines because of these proposed rules if they're approved.
Under the existing rules, MSHA reviews eight categories of violations for special assessments. They are as follows.
Section 100.5 lists the following items which the Agency must consider for a special assessment, and the key word is, "Must," consider. Special assessment is appropriate in violations involving fatalities and serious injuries, unwarrantable failures, operations in the face of a closure order, failure to permit an authorized representative of MSHA to inspect, violations for which individuals are personally liable under 110(c), imminent danger of 105(c) discrimination, and extraordinarily high degree of negligence, gravity or other unique aggravating circumstances.
These eight categories are the ones the Agency must review, but there are no restrictions that say the Agency cannot review other categories for special assessments. Under the new proposed rule, it would be left up to the district manager on what he would consider for special assessments.
We're talking about political pawns at the Department of Labor and MSHA that is ran by Bush-appointed coal operators, coal mine owners and CEOs, and the district manager that rubber-stamps any and all company plans submitted to them no matter how detrimental it is to the health and safety of the miners.
And Mr. Turner spoke earlier on some stuff that happened at our mines. For the safety of the miners, existing rules should not be eliminated.
On page 53063, it reads this is the middle column: "Although an effective penalty can generally be derived by using the regular assessment formula and the single assessment provisions, some types of violations may be of such a nature or seriousness that it is not possible to determine an appropriate penalty under these provisions." That sentence is going to be eliminated, by the way.
And if you'll turn to page 53072, under 100.3, it tells you how a regular assessment's going to be done. It lists six criteria for how it's going to be done, and they are: The appropriateness of the penalty to the size of the business of the operator charged; the operator's history of previous violations; whether the operator was negligent; the gravity of the violation; the demonstrated good faith of the operator charged in attempting to achieve rapid compliance after notification of the violation, and; the effect of the penalty on the operator's ability to continue in business.
"A regular assessment is determined by first assigning the appropriate number of penalty points to the violation by using the appropriate criteria and tables set forth in the section above." And if you'll turn to the next page, to yes, it's 74 53074 we're going to talk about special assessments.
And this says this is 100.5: "MSHA may" again, MSHA may; it doesn't have to, but may, if we change the rules "elect to waive the regular assessment under 100.3 if it determines that conditions warrant a special assessment."
"(b) When MSHA determines" or if they determine "that a special assessment is appropriate, the proposed penalty will be based on the six criteria set forth in 100.3," what I read three pages ago. So you've got a regular assessment using six criteria. You get a number, one of you-all's numbers, in the final. Okay? If it's going to be a special assessment and you can use the same six criteria, how are you going to get a different number? It's going to be the same number whether it's regular or special.
So there's no such thing as a special assessment under this proposal. There's words, but there's no assessment that I can see. And, you know, if I'm wrong, somebody tell me.
If you'll turn to page 53060 this is 100.3. Under the new proposed rules, the three measures of gravity will be retained, and the maximum number of points assigned for likelihood of occurrence of an event will increase from ten to 50. The max number of points assigned for severity of injury or illness would increase from ten to 20, and the max number of points assigned for the number of persons potentially affected would increase from ten to 18.
This would be great if the citations written by MSHA would reflect exactly what the situation was when the citation was written. I'll give you a few examples of what I'm talking about.
These citations I'm going to read to you in a minute were written by, in my opinion, one of the best MSHA inspectors not only in District 11, but in all of MSHA. And still the citations don't affect what the actual situation was when the citation was written.
We had a citation written at Jim Walter Number 4 mines. An inspection cover was not installed on a four-inch round junction box in the shower room of the ladies' bath house. The junction box had the light fixtures removed, leaving a 1-1/2-inch hole in the metal plate, exposing energized 110-volt wires and nuts easily can be seen through the hole in the metal plate. And this is a direct passage for water to contact the wires. The area wire installed are not sealed tightly to prevent the entrance of moisture in a water and electrical hazard location.
A bath house? We have several ladies work at our mines.
S&S? Yes. Persons affected by moderate negligence I mean if there was more than one lady in that bath house, if you use the criteria to get severity and increase penalties, that's part of it. And if we don't show that, then there's not going to be an increase in penalties. There is not going to be an increase in monies. They're not going to be fined more. They're going to be fined less, using your criteria.
If you wrote 50 women or 30 or however many was in that bath house, it might be a different story. But that's not what's happening today. That's not
going to be what happens tomorrow.
Combustible material in the form of dry, black float coal dust was allowed to accumulate on the metal frame work on the operating first West belt line. The location existed from 8 Section discharge and in by the Number 8 intake overcast. Approximate distance was 228 feet. Ventilation travels in by to the working Number 6 section from this area.
Persons affected: Four. That's the people he observed working on that belt line. But his citation says, "Intake to Number 6 section," where there was at least ten more people affected by it if there was a problem on that belt line. Not 14, as I mean not four, as this citation says, but 14 at least 14. When you add in a belt crew or a track crew or extra electricians or whatever, you're talking about more people.
Moderate negligence? A fire boss or somebody walked that belt. That's not moderate. They walked that belt prior to him being down there on the previous shift. Again, using your own citations, there's no increase in the fines. And this gentleman I have more respect for him than any inspector I know, because he does a good job. But that's the way they write them.
Battery-operated scoop observed operating in Number 6 Section with combustible material in the form of oil, grease and soap. Accumulations were allowed to exist in the main electrical control panel and around the conduit with the engine compartment, measuring 2-1/2 inches in depth. The accumulation of coal and coal fines were allowed to exist under the drive-shaft in the operator's compartment, measuring 2 inches to 2-1/2 inches in depth.
That's on the section. Affected people: Two. Moderate negligence.
There was ten people on the section, not two. There might have been two standing by that machine when he walked up, but there's ten on that section. And if that scoops out by the face area and something happens to it, the air is going to take the smoke, the fire or whatever straight to those individuals.
Combustible material in the form of engine oil accumulation on the hot motor valve covers; hot hydraulic hoses, motor and valve covers covered with hydraulic oil. Again, three people on the section. There's more than three on the section. It takes at least ten nine or ten to run coal. Negligence low.
These citations would not increase fines. I'm telling you I've tried to figure it up. I'm not a rocket scientist. I don't see it. I actually called your office. I actually talked to the gentleman on the end here the day before yesterday to try to see if I couldn't somebody couldn't walk me through one to make so I could know how it worked. I didn't get that.
Combustible material in the form of saturated coal and coal fines, up to three inches, with hydraulic oil. Dry, black float coal dust around the pot motor, hydraulic cables and the energized electric areas in a Stamler feeder on Section Number 4, two people affected. Moderate negligence. S&S, but moderate negligence. Two people on the feeder.
Re-intake without belt lines. If there's a fouled up feeder, it's going to the face. It's not going outby. It's going to affect everybody in that section.
Combustible material in the form of black float coal dust was allowed to accumulate in the North A power center. The float coal dust measured 1/16th-inch and was located in the power center cover bottom ledges, 110-volt electrical outlets, 7200-volt energized power cables. The power center was located 25 feet from the North A belt line. Intake air up the belt. Number affected: One person. Moderate.
Diesel man-trip located in the 1 West kickback had combustible material in the form of hydraulic oil, grease on and under the motor and speed reducer and pump air. These areas were hot and warm when inspected. The combustible accumulation on these hot engine parts measured 1/3-inch thick. Miners working on or traveling in by this man-trip would be exposed to smoke and fumes from toxic chemicals produced from combustion.
This man-trip was available for use, was not tagged out and obviously recently operated, as was evidenced by the engine compartment area having hot conditions. He said in the citation, People traveling in by and working in by this man-bus. One person affected. Moderate negligence.
Number 8 Section feeder accumulation: Oil, grease, coal fines. Four inches deep. Affected person: One. Moderate. The same thing: It goes belt-line, inby air, to the section. It's not one person; it's ten people.
The alternate escape for Number A6 was not being maintained to assure safe passage for anyone, including disabled persons. The alternate escapeway, located 30 feet up by the outby corner of crosscut Number 55, spread 23-13-9, was observed to have black, murky mud nine inches in depth and the mud saturated with oil and grease from the rib edge to the belt structure for a distance of 30 feet, 69 feet wide.
Uneven, slick, unstable footing conditions resulted from failure to maintain a safe walkway through this area. Persons that will have need to travel this area will slip and fall, resulting in strain, dislocations, bone breakage occurring. Examiners and persons performing cleaning work frequently travel this area.
He said, "Disabled persons", "alternate escapeway." One person affected. Moderate. If somebody's injured, it's going to take at least four to carry them out on a stretcher. At least, it should have been five, not one. But if it's a section evacuating, again, we're talking ten or more, not one person.
Fletcher roof bolter, Number A6. Combustible material: Float coal dust, grease, oil. The same thing: Only one person, non-S&S, moderate.
There's not a dime this reg ain't worth ten cents. There's no fine for that non-S&S, because there's nothing there. One person. Using your point system, it doesn't get any points. It doesn't get any. It doesn't get a nickel.
The operating Jeffrey RAM car, Number A6 and, again, combustible material. Headlight guts open, exposing wires, electrical wires. It's a fire hazard with float coal dust. Number affected: Three people. Non-S&S. Moderate.
There was probably a couple of electricians and a RAM Corporation guy there looking at it or working on it as he walked by. But the people inby are affected just as much as they are if something happens to that RAM car.
Combustible allowed to accumulate in the form of oil and hydraulic on hot hydraulic hose exflow cables on the roof bolter on the Number 4 section. Again, two people.
You know, if the roof bolter's in the face, that's two. And the miner's in one. That's at least the two well, we've got three bolters three people in our bolters, plus the miner, miner helper and the RAM car. That's at least the least number should have been six the least he could have got. You put the foreman up there doing an examination, and that's seven. No way that it's two people.
There was no weekly exam electrical commission ability examination on the 575-volt water pump location on the return air course. It goes on to talk about that there was no gas or anything found, but if there had been a problem, you know, there was no examination that could have found it. One person affected. Moderate, non-S&S.
Somebody like the fire boss had somebody made a weekly examination. Somebody had to check those pumps. So it's not moderate negligence. It's more than one person affected in the area, because we have pumpers and fire boss pumpers that walk those areas a lot.
The mine track was not being maintained free of compacted material in the following locations: C/O switch, west side of the service cage, four-way at the bottom, northwest four-way switch, elevated above the track, kicking up mine dust into the atmosphere. He wrote, One person affected. Substantial, but not moderate.
We're talking at the bottom, where everybody's inby if something happens. So there's more than one person at Jim Walter Number 4 during a shift. I'm telling you we're talking a hundred or better, and not one person.
Personnel man-door provided at Number 10 located at M-12 long wall butt end was left propped open. Zero people affected. Non-S&S. Moderate.
If there's a fire on that belt line, the smoke's coming up the belt and through the door and up the intake. Now, as your main escapeway is smoked out, the secondary escapeway's smoked out. Fire, fumes and whatever comes off that belt line. Both of them has got smoke in them because that man-door was left open. And nobody affected, non-S&S and moderate? This citation under these proposals was a wasting in writing.
Personnel Door, Number 2 entry, 1 West: Isolate intake was not closed when in use. Man-door left open again. He wrote "six people," because there were six people working in that inside that man-door on that belt line. But in up that belt on that section was another ten people. That if there's a fire, it's going up the belt and up the intake.
Another man-door left open. No isolation between the intake and secondary escapeway and primary escapeway. The same thing: One person, moderate, and non-S&S.
Personnel man-door left open. Non-S&S. Persons affected: One. Moderate.
It's the same as there's hundreds of them. I only brought you about 30, so, you know but it's ridiculous.
Combustible material in the form of black float coal dust was allowed to accumulate on the roof ridge and mine floor areas and return air course in the first West Left Turn. Persons affected: One. Non-S&S. Moderate.
That's ridiculous. Again, combustible material, black float coal dust, electrical-energized 7200 transformer located Number 2 crosscut in the long wall belt. One person, S&S, moderate.
If there's a fire in that transformer, it's going into that long wall, because the air is going right up that belt line.
Combustible material: Black float coal dust allowed to accumulate on 7200-volt, 4160-volt, 110-volt electrical cables running the coal level production shaft column, continuing down to the feeder level, around the top of the production shaft. Coal level, the coal fines and dry flow coal dust coated the roof ribs, measuring 1/2 inches in depth, on electrical cables and railings. The walkway between the rib and the shaft had coal fines accumulating seven inches in depth. Person affected: One. Moderate S&S.
That's at the bottom, now, too. Don't our production shaft is at the bottom, where everybody gets off and leaves. So everybody's inby this thing if something happens there. If there's an explosion, everybody's inby. There's more than one person affected.
Diesel low-track, combustible material in the form of hydraulic fluids have been allowed to accumulate around the diesel fuel-injector and head engine area. The return fuel lines leading from the fuel-injector were saturated with diesel fuel.
A film of diesel fuel coated these motor parts, which were so hot to the touch that the low-track operator used this area to heat up a can of soup to the point needing thick gloves to touch it. That's the can of soup now we're talking about. That's how hot it got in there, with diesel fumes and fuel all over.
This low-track was operating a primary intake escapeway. If this condition is allowed to exist, it is reasonably likely that a miner working or traveling inby will be exposed to fire, smoke and fumes, resulting from a fire occurring from the combustible accumulations being in contact with hot engine parts. Moderate, S&S, one person.
Intake escapeway. There's more than one person inby that low-track.
Accumulation of hydraulic oil allowed to accumulate on low-track on Crosscut 3 and 1 West track. That's out by several sections at our mines. Person affected: One. Non-S&S, moderate.
If something happens to that low-track, the intake air is going straight to 3 section and the long wall.
Weekly examination of the fire-suppression system on the North A belt drive was not conducted for the dates 12/22, 1/03. When inspected, the fire-suppression system functioned properly. Failure to perform the required examination on fire-fighting equipment exposes persons to serious hazards from combustible sources occurring. Ventilation travels in by this area, and four persons were observed working in the belt line. Non-S&S.
The four people that he saw working. And moderate. But the key words is, Ventilation travels inby this area, through everywhere.
This last one is an order that was written. The approved mine emergency evacuation plan was not followed on 8/7/2006. The carbon monoxide monitoring system went into alarm due to elevated carbon monoxide readings at 12:43 a.m. on the morning of 8/7/2006.
Page 4, Section C, Article Two of the approved plan requires miners in the affected area to be withdrawn outby affected sensors. Supervisor Lewis [phonetic] failed to follow the approved plan in that affected miners in Number 8 section were not withdrawn.
Supervisor Lewis was engaged in aggressive conduct, constituting more than an ordinary negligence, thus abnormal failure to comply with the mandatory health and safety standard. S&S, high, but ten people. Ten.
There's four five sections four sections on the long wall inby that sensor that went off. Not ten people. That was one section. The other three sections on the long wall aren't affected, but they were on this citation or this order, they wasn't affected, but they were affected.
One other thing, talking about affected. In the Tuscaloosa news September 27, 2006: Two miners from the Sago commit suicide. Now, tell me that that mine disaster didn't affect these two gentlemen. They weren't in it, but they worked at that mine.
I have brothers and sisters that got transferred from Five mines to Four during layoff. They weren't in that explosion at Five, but it affects them every single day. They talk about it. It's on their minds. So to say, "One person affected," or, "Two people affected," doesn't do it justice.
So although you're no in the explosion, it still affects you. And if you want to read this article, I'll be glad to give it to you.
The proposed rule states the number of categories in the persons potentially affected table will increase from seven to 11. I looked through this. I can't find that table in here. I mean I might have overlooked it, and if it's here, well, somebody point it out to me. So I don't know if it increases or what it does, because I couldn't find it.
If you'll turn to page 53059 it says all violations should be considered in determining repeat violations not just S&S. That's how I feel.
What I just showed you proved that, also, all standards should be considered. I mean it's the way the inspectors are writing the citations. I think it's the way they've been told to write them. That's my personal opinion. It doesn't there's no points that can be accumulated, because of the low numbers they're putting on them, the low negligence they're putting on them.
And as far as the history, I want to use the example you all used in the plan. If you'll turn to in the if you've got one 30 CFR, it's 75.202(a) and 202(b).
If I read this correctly, for a history to be formed, the inspector has to write it under 75.202(a), (a), (a), (a), (a), (a). If he writes (a) today and a (b) tomorrow and another (a) and another (b), he has got to write about ten citations before that mine has got a history, but we've still got ten unsupported-roof problems, if you read this.
It says, "The roof, face and ribs of areas where persons work or travel should be supported or otherwise controlled to protect persons from hazards related to falls of the roof, face or ribs and coal and rock." That's (a).
(b): "No persons shall work or travel under unsupported roof unless in accordance with this subpart."
We're talking unsupported roof, (a) and (b), but that's two different citations if he writes them, 202(a) and 202(b). So you've got to write about ten citations to get a history. And in 15 months, like my brother said, the worst lawyer shoot, I handle arbitrations. I can drag it out 15 months, and I'm not even a lawyer.
There's no history. There's nothing. You've done away with it. Excuse my language. I'm sorry.
It takes also, the Agency should factor in the number of inspection should not factor in the number of inspection days in which repeat violations were cited. They should not do that, because we're talking small mines don't get cited or inspected nearly as much as large mines. And I worked in small mines about four-and-a-half years. I know. That's just another way to lessen the repeat violations history and let operators that violate the law off easy.
If you'll turn to page 53061, the old rule, a 10-point penalty is assigned when the operator fails to abate the violation within the time set by the inspector. The new rule deletes the 10-point penalty but still leaves a reduction in the amount of a regular assessment when the operator abates the violation within the time set by the inspector.
It's hard for me to understand how the new rule would cause an operator to abate a violation on time when there's no penalty if you don't. I mean he gets 10 percent. And 10 percent that's $120. So if he has got something else to do or if he puts according to this plan, if he puts one person on there, he's trying to abate it. I just don't see it being effective.
I know you're going to tell me that the Mine Act provides two other sanctions for failure to correct violations. We have those same sanctions now, and they're not being used, so what would make me believe it would be any different under the new proposed rules?
If you turn to well, we're on page 53061. The new rule changes Table III-10 from zero to nine to zero to ten with point increases as far as persons affected potentially affected. I think there should be two steps, not zero through ten as on here or more. There should be two steps: Zero persons affected, or one or more persons affected. And one or more persons affected would be the max penalty of you all have got 18 points, not ten. Not ten steps.
You know, one life is bad. If we lose one life, it's bad. We shouldn't put it and say, Well, if we lose ten, that's worse. I just lost a brother at Jim Walter 4 this year. That was bad. He was a good friend, a good man. One life's bad. So if one person's affected, it should be the same penalty as if it was 50 affected.
So then we take out this part here. That makes this one person affected mean something then. So make it two steps. Don't drag it out for a week.
In closing, I cannot accept MSHA's underlying assumptions that the operators complying with the law or the money MSHA says the operators will be fined and the monies collected. I don't see it in here. And like I said, I called the assessment office to try to get somebody to walk me through a citation, and it didn't happen.
For the health and safety of the coal miners of this nation, I ask you please don't approve these rules as they're written. Go back to the drawing board if you have to and change them, and we'll come back and do this again. There's bugs in it. I see ways of less enforcement, less compliance and more things like what happened at Jim Walter 5.
In 2001, September 23, it was a disaster. It didn't make big national headlines, because of 9/11. The miners in Alabama and the widows in Alabama cried for stiffer MSHA compliance to make them do their jobs, make the mine operators do their jobs. Nothing happened for five years. January of this year, at Sago mines in West Virginia, it happened.
There was no other big news at that time. It made national headlines. People cried out for mine safety. The governor of West Virginia and the congress said, Okay, we're going to do something. In big headlines: "Increase penalties," which was good. People started to say, Oh, that's great.
But then we come down with this proposal, in my opinion, by coal operators and mine owners, which says, There ain't no penalties here. This is not stiffer. It's less, and it gives them loopholes to get out of it. Don't do that.
We're here in Alabama. We're not the headlines today. George Bush is the headlines, two doors down. There's not going to be an outcry because these are passed today or next week or next month. So don't do it. It's out of the headlines now, but it's still in our hearts. I think you're putting miners at risk. So please don't do it. Thank you.
MS. SILVEY: Thank you.
(Applause.)
MS. SILVEY: I have a couple of comments, and some of my colleagues and panel members might, also.
MR. BLANKENSHIP: Okay.
MS. SILVEY: First of all and this is just as a way of me reiterating or restressing the fact that a number of times, you stated, Mr. Blankenship, in the proposal, as well as in my opening statement, that we used the statement that, "MSHA believes", "The Agency believes," in support of some of the actions that were contained in the proposal.
MR. BLANKENSHIP: Okay.
MS. SILVEY: And we did. One of the things that we all know, I think, is that the purpose of civil penalties civil penalties, now, and you get to a different purpose when you get to criminal penalties.
But the purpose of civil penalties is not to drive mine operators out of business, but to and somewhere you know, there's probably a balance somewhere: Not to drive operators out of business, but to serve as an accepted deterrent to unsafe and unhealthy workplace conditions or, in another way, to induce mine operators to create safety and healthy conditions in their work places and, thereby, to improve compliance with MSHA laws and regulations, some of which we heard you recite from some of the violations.
When we used in the proposal, "We believe," and when I included that in my opening statement, we looked at MSHA's violation data from the year 2005. And I think throughout the proposal in various parts, we refer to that. So when we said, "We believe," the belief was based on an analysis of that data, as well as on the MSHA's experience.
We have representatives on the panel, some of which before you you can see, representing coal mine safety and health
MR. BLANKENSHIP: Right.
MS. SILVEY: metal and non-metal mine safety and health. And you just see two of the people, but not the full experts that we use when we were coming up with this proposal.
So in the proposal, in using the 2005 data, what you will find in the analysis is you will find aggregate data. We didn't segregate the data down to, let's say, Jim Walter mine or Vulcan Materials or Drummond Co., but we looked at all took all the violation data, got sums of all of this violation data and included it in the proposal.
And what we did is we showed the baseline number of civil penalties under the existing rule. We took that number of the total civil penalty violations for 2005 and applied as if we took it and just did an estimate, applied the penalties under this proposal to that data. And we got and we took the baseline average of civil penalties, the number and the average.
And so in so doing, then we got the total assessments under the proposal. And that total went from 24 million to 68 million. And then we got the average under the existing rule and the average under the proposal. And the average went depending on the table is on page 53067 in the proposed rule. So we used that.
And then in Table IV-6, we developed a percentage increase in the penalties. And the percentage increase went from for coal operators I'll stay on coal operators. The percentage increase went for coal operations of one to five, which have one to five employees, at 48 percent, to a 333 percent for operations with 501-plus, with various percentages along the way.
And for metal and non-metal operations, there were similar increases in the assessments. And the dollar amount of assessment went from worked into that same from a dollar amount of 165 to $1,668 per that's per violation.
So I just wanted to say for the purposes of everybody in here you we had to do some type of analysis, and you had to use some basis for what you did. Even though I as I say that, you know, one of the reasons you have notice and comment in rulemaking is that you can get comment from people who are affected by the rule, like we're doing today.
But in terms of the basis for our rule, I would draw your attention and I'm not just talking to you, Mr. Blankenship, but to everybody here.
MR. BLANKENSHIP: What's fine.
MS. SILVEY: I would draw your attention to the various analyses that are done and included in the proposal. I might ask you to comment on some of the analyses; there might be ways that we can improve them as we move to the final rules.
MR. BLANKENSHIP: Okay.
MS. SILVEY: The second comment I'd like to make is on your the citations that you pointed out to us
MR. BLANKENSHIP: That's fine.
MS. SILVEY: and the number of persons potentially affected, particularly that aspect of the citation.
I would like to say to everybody here, also, that MSHA continues to emphasize areas where we can improve enforcement. And I know you all know that the inspectors go through a lot of training and they have, you know, refresher training. And that's an aspect, an area, where we can improve certain things with respect to what the inspectors have to do when the issue the citations, one of the both for consistency and for accuracy, that they do it right.
And one of the areas that we are emphasizing in this inspector training is persons: How do you mark for persons potentially affected by the violation and to make sure that we get it right and they do it right? And not to be critical of our inspectors, either, as I say that, but there's always room for improvement.
MR. BLANKENSHIP: Well, like I said earlier, I have a lot of respect for this gentleman.
MS. SILVEY: You did. You said that. I appreciate that.
MR. BLANKENSHIP: I wasn't bringing him down whatsoever.
MS. SILVEY: And me, either. I'm not meaning to be critical, but there you know, there's room for improvement, yes.
MR. BLANKENSHIP: Sure.
MS. SILVEY: Does anybody else
MR. MATTOS: Well, yes. I'd like to follow up with on the comment on not being able to walk through a citation under the proposed rule. I'd like to offer, after we adjourn today, to do exactly that.
MR. BLANKENSHIP: Okay. Great. I appreciate that.
MR. MATTOS: You certainly have some examples with you that we can use.
MR. BLANKENSHIP: Yes. We can do that. I appreciate it.
MR. MATTOS: Okay.
MR. BLANKENSHIP: I'm going to give these to you, because I think
MS. SILVEY: Yes. We'll put that in the record. Thank you.
MR. CROCCO: Hey, James?
MR. BLANKENSHIP: Yes, sir.
MR. CROCCO: Before you go, I'd just like to say that Pat's right. I mean we are looking at a number of things about how we review gravity and number of people, you know, in inspectors training and things like that. And under the proposal, you know, the assessments will have a lot more based on that assessment. So we will be doing a better job along those lines.
But I was going to ask you. Do you raise those objections at conference or close-out conference or anything like that?
MR. BLANKENSHIP: We sometimes. I mean, basically, we're arguing, "Yes, it was," or, "No, it wasn't." I mean, you know, the violation. But I probably will now
MR. CROCCO: Oh. Okay.
MR. BLANKENSHIP: now that you've brought that up. I hadn't thought about it. But I probably will now.
MR. CROCCO: Okay. Thanks.
MR. BLANKENSHIP: I appreciate it. Thank you.
MS. SILVEY: Thank you.
MR. WILSON: Good morning.
MS. SILVEY: Good morning.
MR. WILSON: My name is Thomas Wilson; I work for the United Mine Workers of America, international representative. I rise in favor of increasing civil penalties, but, with all due respect, I rise against the proposed rule as written. Before I start commenting on specifics, I first want to explain the foundation for my beliefs.
The proposed rule and assumptions are based on the violations written. I strongly believe that the violations written represent less than 5 percent of the total violations and hazards that exist in every work place on a daily basis. I also strongly believe that many of Alabama's work places are flirting with death and disaster every day of every week.
With every phone call there's nothing but fear that the next phone call will be that call that a disaster has occurred. I want to give you but just a few examples of what has occurred in Alabama in the last month.
The UMWA representative had to request that at a contractor job site drug testing be performed in that a contractor's supervisor was distributing cocaine to all the workers on his shift at that job site. As a result of that request, eight contractors lost their jobs.
Also within the last month, at another contractor site, it was alleged and uncontested that three miners were smoking in a shaft which had cut into one of Alabama's deep mines.
We have other operations which, regardless of the day of the week or the shift, we cannot go to the operations without finding numerous hazardous conditions. And unfortunately, although I have no fault with any individual MSHA inspector unfortunately, some of these areas where we're finding hazardous conditions that would cause death or serious injury, the inspectors have just inspected the same areas and are not citing the same number of hazards that we're citing.
With that said, being that this proposed rule is based on violations written, I believe that it is fundamentally flawed from the onset. It states throughout the rule that, MSHA believes. I'll simply state that I believe differently than what MSHA believes.
I have studied this proposal very hard numerous times. The results that MSHA claims that this proposal or that they believe this proposal will achieve I have not been able to convince myself, my heard and mind, that in any way this proposal will achieve what MSHA sets out to or states their goal is to achieve.
There is one thing in the proposal that I do believe. It's on 53068. It says I'm just going to read a few words of it: "Estimate the new reduced number of violations." Now, I do believe that the following, the passage if this proposal goes forward, we will see a new reduced number of violations. I don't believe it's because of anything that this proposal does. I, like many commenters before me, believe that it's because of the direction of the top officials of MSHA , the direction that they want the agency to go.
MSHA's proposal has little to commend it and constitutes a significant disappointment. Moreover, MSHA's so-called explanations have virtually no objective support. The agency repeatedly says, "We believe," but then offers no factual record or any analytical support for these, for the changes. This puts the stakeholders in the difficult position of criticizing what appears to be very random result-oriented choices.
A troubling proposal is the elimination of the list of categories for special assessment. While MSHA claims to be removing the limitation quotes on the types of violations for which special assessments are made, in fact, there is no current limitation. While there is a list of eight types of violations that must be considered for special assessments under the existing regulation, the fact is: No restriction on violations for which a special assessment may be considered or applied.
Most significant, though, is that each of the eight types now routinely referred for consideration of a special assessment is very serious. We do not want to see any of them treated as routine, as the MSHA proposal seems to do.
While MSHA claims to be burdened by the amount of administrative time each special assessment now consumes, it reports that only 2.7 percent of all violations were specially assessed, without offering any information about how many violations were referred for special assessment but which did not receive a special assessment.
At page 53065, it discusses how it expects the special assessments would operate under the proposal. At page 53066, MSHA indicates special assessments would properly apply only for agents, those involving fatalities and failure of timely notifying MSHA, and flagrant violations, thereby suggesting the other items currently referred for special assessments generally would no longer be referred.
I believe that the current list that is listed in 100.5 I believe it's (c) should remain as the minimum guideline for special assessments. District managers should not have the ultimate say in what is specially assessed; there should be that minimum guideline of eight categories. If he chooses to go above that eight, he currently has the right to, and he would continue to have the right to.
For regular assessments, 100.3, MSHA claims to be revising the penalties so they will increase proportionately to increases in operator size, history, and negligence, and the gravity or seriousness of the violation.
At page 53056, I can agree that history is an appropriate factor for increasing a penalty, though not in the way MSHA proposes to change how history is figured, as is the relative negligence and gravity of the violation.
But I suggest as you heard earlier, miners testified that had previously worked small mines. They testified that in small mines hazards and violations were worse than at the big mines.
I started the presentation talking about contractors, and I heard one of the panel members speak earlier that the scales was proportionately increased for each category. I submit to you that all the penalties are too low and that each if current regulations have you where you have to proportionately increase those categories, then proportionately increase them higher.
These low penalties will not achieve the compliance that MSHA is seeking. I believe MSHA has factored in the violations written, the cost of it's my belief and I stated it earlier that the violations written represent less than 5 percent of the violations and hazards that are there, miners face every day. The incentive to correct that other 95 percent needs to be much greater than what this proposal does.
Even though MSHA is required to consider small operators, contractors, you've got to recognize that some of these locations where we're having the greatest threat on miners' lives I gave you but two examples of contractors in Alabama that happened in the last month.
Those type of activities in mines should not be condoned, and just because they're a contractor, they should not be rewarded for those type of activities.
As for history of violation, MSHA proposes reducing the relevant time period from 24 months to 15 months. Under existing language, only those violations for which a civil penalty has been paid or finally adjudicated are considered, whereas the newly proposed language includes the words "or have become final orders of the Commission."
While MSHA claims no change in the intent is intended, it does not explain why it wants to add this language, and it may serve to confuse. If an operator appeals a particular violation from the FMSHRC to the courts, will MSHA consider it finally adjudicated?
Perhaps the new language is intended to clarify that, but unless that is stated in the preamble, confusion rather than clarify may result.
MSHA does not give any objective data about the implications for the reduced changed time span, but it seems suspicious. It does not explain it, and the change certainly seems arbitrary.
There's several objections to the repeat violation, and I think each one is a strike against safety: reducing the time period from 24 months to 15 months. We've heard many commenters on this. Considering only violations that are paid or finally adjudicated.
MSHA seeks comments on whether only S&S should be considered for repeat violation. It's my opinion that all violations should be considered for S&S violations and that the 24-month period should remain.
This was written in a manner that gave me the impression that MSHA is trying to do away with the important tool of repeat violations.
And it was also pointed out by a former speaker that repeat violation MSHA has also narrowed it in another area: It has to be of that specific same subpart.
Every proposal that MSHA has made on repeat violation actually, again, gives me the impression MSHA is trying to throw away that tool and make it that much more difficult to use that tool.
MSHA should look at the overall regulation as it now does, without considering which particular subparts were violated. MSHA should not look only at violations that are cited in exactly the same way. This will not do an adequate job of identifying chronic problems, which is the purpose behind levying higher fines for repeat violations.
Under 100.3(c)(1) I believe MSHA would exempt from the additional points any operator that has had ten or fewer violations of any sort in the prior 15 months. This seems arbitrary and would only apply to small operations, which have fewer MSHA inspections.
In the next section 100.3(c)(2), MSHA also would not impose any additional penalty points on any operators that has had five or fewer of the exact same standard within the last 15 months, again, disproportionately helping the small operations.
I agree with MSHA's proposal to retain the five tiers of negligence under 100.3(d) and its plan to attach more points for the three highest levels of negligence at page 53059.
As for the impact of gravity under 100.3(e), three items are considered: likelihood of occurrence, severity of injury or illness if the event were to occur, and the number of persons potentially affected. MSHA proposes increases the points for the greater severity, which seems appropriate, but MSHA is not increasing those points enough.
Like MSHA's plan to eliminate the special assessment criteria, MSHA's proposal to delete the assignment of additional penalties whenever an operator fails to timely abate is a bad idea and not logically supported by the rationale MSHA offers.
At page 53061, the agency claims that the additional penalties are not necessary because it has two other sanctions available to apply: withdrawal orders and assessments of daily penalty under 110(b). However, MSHA offers no suggestion nor any promise that it will apply either of these sanctions in every case. Without that promise, why remove one enforcement tool it now has.
At this point I'd like to ask for clarification on for unwarrantable failures, 100.4, at page 53063. MSHA references to minimum fines that must be imposed through the MINER Act but does not state that the point and penalty system otherwise in place would apply to these, does it?
MS. SILVEY: Jay will address that more specifically, but as of today and that's what I tried to say in the opening statement we are the MINER Act provisions for civil penalty are really in place today, and so every cite to every unwarrantable citation and order is receiving the $2000 for an unwarrantable citation and the $4000, at least I said receiving; I should say at a minimum it's receiving the $2000 for an unwarrantable citation and $4000 for an unwarrantable order, in accordance with the MINER Act.
And that is happening today, and it will continue to happen under the when the rule goes final.
You want to add anything?
MR. MATTOS: Does that answer your question?
MR. WILSON: Yes. I cannot accept MSHA's underlying assumptions about how operators will likely respond to the proposed changes, so, too, I cannot accept the conclusions shown in the charts about the dollars that will be assessed and/or collected.
At page 53059, the agency solicited comments on whether or not inspection days should be factored in. I am against the number of inspection days being factored in.
I don't know if I've missed this or not, but I'm also all violations should be considered for repeat this is page 53059 not just S&S.
As those that have spoken before me, page 53060, (e), on gravity I'll make two points on that section. One is I don't believe MSHA has proposed a great enough increase and, two, there's many cases where MSHA is currently not figuring this correctly as we sit before you today.
I said I'd make two points. Also like the previous commenter, I, too, have been unable to find the scales that this section refers to. The second column, where it refers to maximum number of points assigned for the number of persons potentially affected would increase from ten to eighteen; in addition, the number of categories in the persons-potentially-affected table would increase from seven to eleven.
I also want to take a moment to comment on some earlier comments that were submitted into the record. First, Greer Industries, Inc., dated September 19, 2006, second page: It states, "MSHA's education and training personnel should be providing 30 CFR Part 48 and Part 46 training to mining companies and not simply making it a law that states what has to be achieved to meet compliance. Good education on training is hard to come by, and MSHA should be providing the training."
I want to strongly object. Each operator should care enough about their miners to develop good training programs and should not look to MSHA to provide all that training.
This letter goes on to state, "MSHA should also be concentrating its effort on problem mines. Mines that have high accident and injury rates, increased violation
rates, and fatalities should be targeted by MSHA for increased enforcement and penalties.
"Mines with good safety records, low accident and injury rates, and no fatalities should be given a grace period from inspections for a period of time and also have their penalty assessments decreased as a way to positively reinforce a job well done and thereby increase operator compliance and increase safety and health to well maintained, safe, and productive mines."
Again, I rise in opposition to those earlier comments.
Also, an earlier comment from Michael Joseph that's posted on the website to 30 CFR Part 100.3(a)(1): And he states, "More training and proper procedures in performing a task that a miner performs, proper preshift examination, on-shift examinations, and weekly examination is the key in eliminating accidents and should be MSHA's main goal."
He states that after saying increasing the penalty for a violation is not going to improve safety at the mines.
The things he lists as being key are things they should be doing now. We currently have coal fields that's full of tragedies, and we need to take stronger steps.
I'll close: I rise in favor of the increase in civil penalties. With all due respect, I rise against the proposed rule as written in that it does not raise the penalties high enough.
Thank you.
MS. SILVEY: Thank you, Mr. Wilson.
I have a couple no questions, but I have a couple of comments. Somewhere in your testimony you talked about reduced violations, and I'd like to just talk about that table that we showed on page 53069 of the proposal, talking about reduced violations, but just to explain the process that the agency went through.
And in doing that and our economist is here but in doing that, you know, you make a lot of assumptions; I mean, we know about that when you look at the economic assumptions that they say underlie all kind of figures that are put before us for our daily lives. A lot of times the economic assumptions we say we might not agree with.
But to come to any type of figures I might say I don't agree with some of them, but to come to any type of figures, you have to build in some assumptions, and that's another reason. You know, we draw your attention to that, and that's probably one of the reasons I want to talk about it. And so you can comment on the assumptions, even.
So on page 53069 and the reason we used reduced violations, we show two sets of tables here: Table 4-9, and the heading was Impact of the Proposed Rule with Unchanged Compliance and With Increased Compliance Response to Higher Penalty Assessments.
And this is what the thought process that we went through, that under the existing rule we show the number of penalties, the old penalties. Then we show the new proposed rule with the same compliance; the penalties would go from 24.8 million to 68.5 million, and I'm rounding.
Then we show that we and basically we got a mathematical difference, which was an increase of $43 million. But then we said that when these and, you know, you can we shouldn't argue about that; we don't know exactly when this will happen. But sometime after the new penalties go into effect, hopefully sometime after December '06, because that's when, under the law, we have to do part of this proposal, the parts related to the MINER Act sometime after December '06 we said that mine operators would expend additional monies to improve compliance, because with these new penalties in place, new higher penalties, that would be an incentive; they would want to expend funds and improve compliance.
We estimated, based on some economic assumptions, that mine operators would expend approximately $9 million to improve compliance, but we didn't add that to the cost of the rule, because we said they should be doing that anyway.
And then we said that because of that improved compliance and the higher penalties, that the penalties would go down. But those are assumptions; we are assuming that because of the improved compliance and the higher penalties that now, that's probably some year or two out, you know, out years; we said that and that's why we used the term "reduced violations": nothing that MSHA would be doing, nothing that the inspectors would be doing to reduce any citations of violations, but actions on the parts of the mine operators, that they would be doing these to better comply and because of the higher penalties.
So I wanted to explain that part so everybody would understand that's the thought process that we went the agency went through. You could agree with that; you could take issue with that in your comments, but that was our thought process.
MR. WILSON: Yes, ma'am. I understood that, and I was taking issue with it.
MS. SILVEY: Okay. And then the other thing that I want to comment you made a comment, Tom, about the history, that the violations that are paid are not finally adjudicated in terms of being taken into consideration for history. And would you explain
MR. MATTOS: Yes. There really actually I have a question for you on that, as well, or related to that.
The reason we changed the language in the rule to say "a final order," the old language, I believe, said that it had to be paid or otherwise finally adjudicated. Well, actually, it doesn't have to be paid. If it's not once after 30 days if it was not contested, even it's not paid, it's a final order, so that is
MS. SILVEY: It's no change.
MR. MATTOS: -- included in the history, so there really is no change. It was a clarification of the language, but no change.
MS. SILVEY: No change.
MR. MATTOS: Which is a segue into my question, that we've covered a lot of comments over the time frame, reducing it to 15 months. The current rule, on history, we go back 24 months, but that 24 months is six months in the past, so we're going back 2-1/2 years to start the history calculation for the penalty.
What our intent was the committee had a lot of conversation on this: We really think it's more important to look at the most recent history in an operation what are the current conditions in the operation not looking at what was occurring 2-1/2 years ago.
We did have a lot of concern about we have to consider only final orders of the Commission. We had some concerns over the contest rate, and we looked at those numbers, and you had a question about that, how we came up with the 15 months.
And in general, all well, the vast majority of citations and orders are final within three months. So that's why we went back 15 months, so that we'd get a full year in, and we'd be looking at the most current history.
And my question to you on that is, if the contest rate was not an issue; if the contested citations and orders could be considered which they can't, because it's due process issued would that 15-month time frame work for you? Would you agree with that, or do you have other concerns over that 15-month time frame, beyond being able what some of the quotes here have been dragging out the citations so that they're not considered.
Is that your only concern, or are there others with that 15-month time frame?
MR. WILSON: The main concern is that we think there's several different steps in the proposed rule that narrows that window for what MSHA would consider repeat violations.
And collectively, if you add all those steps together, you've got such a narrow window that we think you're eliminating an important tool that currently exists.
MR. MATTOS: Okay. On the repeat the violation history, the only change that we have there is shortening up the time frame. I think maybe there's some confusion over the repeat violations of the same standard. Is that an issue?
MR. WILSON: Well, another narrowing of the window would be the same the exact same standard.
MR. MATTOS: Okay. Just to clarify that one, the repeat violation of the same standard is an entirely new category, so we're adding points that didn't exist before for the repeat violations of the same standard.
And we do appreciate the comments. That's one of the reasons we asked for comments on that, because it is a new provision, and we did want comments on how that provision is written and how we proposed it, and appreciate that.
But we're not on the violation history we're not narrowing down anything, I think, beyond the time frame, and changing that.
One other question I had was, on the special assessments we've received a lot of comments on special assessments, and at the first hearing we had some comments that or concerns that the number of special assessments would increase under this proposal, and here we're hearing today about concerns that they would decrease.
The question you had a question of the 2.7 percent of citations that were specially assessed last year, what percentage of those recommended by the district managers for special assessment received a special assessment, and that's 100 percent; that's all of them. That's the process: If they recommend it for a special assessment, it gets specially assessed.
The committee's deliberations in changing or removing the list of categories that we will automatically consider for special assessment, not automatically give a special assessment, but consider for special assessment really no change from what we're currently doing; we just right now the district managers can consider any citation or order, recommend any citation or order for special assessment, and that does not change on the proposed rule; just to clarify that.
We took the lists out of those categories that we will automatically review for special assessment, and, frankly, it was something that was we considered the committee considered unnecessary in the rule, because it was really doing rulemaking on MSHA, saying, This is what MSHA is going to do automatically every time, and I guess we need to do a better job of clarifying that in the language, because we received comments both ways on that one.
MR. WILSON: By removing that list, there's still no assurance that MSHA will continue to consider those eight categories. You say that's what they're doing now and that's what you plan to do in the future, but there is no assurance that that's what they will do.
MR. MATTOS: And I appreciate that comment for the record. Thank you.
MS. SILVEY: Anybody else have anything?
MR. CROCCO: Yes. I have a question for Tom. You made some comments about small coal operators. Was it your opinion that small operators get too big of a break in the way of assessments, or were you you heard some of the earlier commenters say that, you know, the assessments should be the same regardless of operator size. Do you have an opinion on that?
MR. WILSON: Yes. I believe small operators receive not only in assessments, but if you look through waivers and every other category of for small operators, I do believe they receive too big a break, and they don't have the incentive to provide the safe working conditions that's sometimes found at other operations.
And the only way to get their attention is to raise the whole scale, and I suggest you raise the whole scale. Did that answer your question?
MR. CROCCO: Yes, sir. Thanks.
MR. WILSON: Okay.
MR. STONE: Let me just try to clarify one thing about the special penalties that will become regular penalties. It is not the case that the specials and 2005 is an example would receive a lower penalty treated as a regular. On average, for those special penalties that we estimated would become regulars, the average penalty as a regular went up 86 percent relative to what they had been as a special.
And the logic for moving them from a special to a regular is because we do believe that through this new penalty structure that in most cases the regular penalty structure will accurately or reasonably reflect the seriousness of the citation and the circumstances of it.
And, again, going from a special to a regular will yield larger penalties relative to what they had been in 2005.
MS. SILVEY: And I'll add on to what Robert said, Tom, and that is that one of the things we found out like Jay said, we don't want to put regulations on MSHA, but one of the things we did find out and we do know is that, with respect to special assessments, an inordinate amount of enforcement time is spent on the special assessments.
So one of the things we thought we could do if you had an appropriate penalty, as Robert said, that we felt that an appropriate penalty could be achieved through the formula system, computer-generated penalty, since we had increased all the factors, then the time that our enforcement people would be spending reviewing and analyzing the specials and commenting and providing documentation that time could be allocated to field enforcement work, so that was the driving force in there. It was really sort of enforcement driven, and that's what we another assumption that we used. So I wanted to add that.
Anybody else?
(No response.)
MS. SILVEY: So, Tom, I would like to say that we have received constructive and innovative comments. Jay mentioned that earlier and meaningful comments, and we do appreciate that, and we will use those as we go forward from the hearing today now we've got four remaining to the other four hearings. And I do want you to know that.
MR. WILSON: Okay.
MS. SILVEY: Thank you.
Is there anybody else who wishes to testify?
(No response.)
MS. SILVEY: Any other persons or organizations?
MR. HENSLEY: Good morning. My name is Guy Hensley. I'm an attorney with Jim Walter Resources.
What concerned me about the proposed rules, as I read them, is I picked a couple of citations that we received in 2005, under the old current point system, and ran them through the new point system, and the numbers went up a lot higher than the proposed rule would have indicated.
A non-S&S citation that I picked, at just somewhat random, went from $60, under the single-penalty assessment provision, to $807. A regular assessment for a regular S&S reasonably likely, lost work days, one person, moderate negligence went from $324 to nearly $4000 under the new point system.
This was concerning to me, so I've been running numbers ever since, with the aid of a number of people who have abilities beyond mine at computers and number-crunching.
I don't understand everything about the formulas that were used or the reasons for them, and I don't totally understand the goal. It appears that we're trying to reduce citations and reduce the mines safer as a result of that; I understand that.
It also appears that the goal appears to be something around 20 percent reduction over time, according to the paperwork that I've seen from the agency. Is that pretty close to what you're trying to do?
MS. SILVEY: That, per se and I hope I clearly that's the overall goal, that violations would be reduced and the mines would be safer; that the higher penalties would serve as a greater inducement to mine operator compliance with MSHA's standards and regulations.
I gave as an example of what we include in our reg analysis some assumptions, and when we use those assumptions, we projected that the violations would come down by whatever number we included in there.
As a matter of fact, we show two numbers: We show violations under the proposed rule with the same compliance, and then we show violations reduced violations with improved compliance, and that's an assumption. I want to say that it was not necessarily a per se goal that we had in mind, but it was an assumption that it was something that grew out of the assumptions we used when we went through that process the analysis process.
And, Robert, you correct me if I'm wrong here, but with respect to your comment about you took a few citations and, Jay, you Robert and/or Jay and put them through I'm not a data person, either. I mean, I'm the last person who learned something about the computer.
But you said you took a few and you put them through the new proposal. The numbers that you see in all of the analyses in the proposals are aggregate numbers, and as aggregate numbers and average numbers, that means obviously I don't have to you know, you that means that any particular citation might come out under that or might come out some may come out well above that, depending on, you know, the circumstances of the facts surrounding that particular citation.
But when we took all of these violations that were issued in 2005 and then ran aggregate analyses on them, those are the numbers that you see reflected in the agency's various analyses in the proposal.
Is that accurate?
MR. STONE: That's I can give you an example in a couple of cases. Again, we did not start with a goal of 20 percent reduction. That fell out of our analysis. Certainly MSHA's goal is not to have any citations or injuries and fatalities, and as constrained by the Mine Act and the MINER Act, we're trying to proceed as best as possible to achieve that.
And what we did was, in trying to figure out what the compliance response would be of industry, we did some economic modeling, and we assumed a particular type of elasticity response of mine operators and contractors to increased penalties.
And we've used as a particular elasticity response in this we assumed that .3 minus .3. We've used that in the past, and we justified it in the regulatory analysis in the economic analysis that we supported this rule with proposed rule with.
And that minus .3 could be subject to change that will lead to some changes in that percentage reduction. In theory if there were no response by industry, there would be no reduction. But we believe that industry will respond, and we assume the minus .3.
Pat already indicated that there is a distribution of effects; basically a distribution of what the penalties would be, and you're reflecting what you observed with your individual firm, in particular several citations.
You mentioned, for example, a single penalty. I'll give you what the distribution is, roughly. You had one going from 60 to 870 [sic], which is 60 to $870. And that is in the range of possibility, but it's not likely for the overall number of single penalties.
For all single penalties, 65 percent of them would go from $60 to $100; about 20 percent would go to an average of $155. Eight percent would go to about $335. Five percent would go to $770, and then above that, about 1.8 percent would go from above $770 to up to $4800; that's about 1.5 percent fewer 1.5 percent in the example you used.
I assume it's an accurate calculation. It's certainly posited, but it's not representative of all the penalties that we saw, and that would be true for any of the regular other penalties that you calculated.
MR. HENSLEY: Well, as it turned out, the nonS&S citation that I had picked was a 75.400 citation, and so it would be the most cited standard.
MS. SILVEY: Yes.
MR. HENSLEY: By far.
MS. SILVEY: Yes.
MR. HENSLEY: And at our mines, as many other mines of any size, it would be nearly impossible not to get the 20 bonus points for every 75.400, regardless of nonS&S or S&S designation.
So it would happen a lot, because that is the most-cited standard. Clearly there aren't that many standards that would receive the kind of attention that a 75.400 would, and appropriately so.
That was just the starting point for the analysis, because I went back for two of our three mines for 2005 and aggregated the penalties and figured out what those increases would be. And as you might expect, it wasn't as extreme as the examples that I gave, but I think the examples are symptomatic of a problem that I wanted to suggest that might be in existence, because our numbers ended up being way beyond the pale when I ran them for the whole mine for 2005, going up from you know, going up about 400 to 500 percent across the board.
And, you know, you take the elasticity number, which I from what I understand is an arbitrary number, with no quantitative analysis behind it.
MR. STONE: We did not quantifiably justify it, but we qualitatively discussed why we have used this number in the past and why we're using it now. But we do not have statistical studies to justify using the minus .3 for elasticity.
MR. HENSLEY: I didn't understand how the qualitative analysis led you specifically to the .3.
MR. STONE: We discussed several factors that would lead an operator to respond or not to respond to a larger extent, and so some of the reasons would be that there are other factors and other points that the operator will consider, for example. It's not just a penalty that an operator would be concerned with: the risk of an accident which would damage his property, so that would be another reason why he would want to invest in safety; concerned, obviously, about the health and welfare of the miners who work with the operator.
And the operator would also be concerned about if the mine had a reputation for being unsafe, the miner would be concerned about attracting miners to work there, about how much you'd have to pay them to attract them. So there are other factors other than the fine itself. Also there was the risk of closure. So there are a variety of factors that go into play, not just the penalty itself, that will influence the operator.
MR. HENSLEY: That's a fair point, and that applies to especially to non-S&S more serious items. I don't totally understand how that applies to for example, we received in the past non-S&S citations for cobwebs in the women's bathhouse, a condition we don't want to have in existence, but if the fine goes from $60 to under this formula it would be about $160, I don't see how that seems as rational. I don't understand how the nonS&S frankly, I don't understand the policy of doing away with single-penalty assessments versus just elevating the penalty, period.
If we're going to increase penalties with the goal of decreasing accidents by decreasing citations, then why do we have to go to all of this analysis and just increase it and see? We've got some quantitative analysis that we could do; we've had two 10-percent increases in the last decade that we could look and see what happened to citations then.
If they went down 3 percent, as your elasticity number would suggest, each time, then maybe we've got something. If they went up, then maybe there are other factors.
MS. SILVEY: In Tuesday's hearing and the transcript will be on the website we got testimony comment that we should not delete the single penalty; maybe we should increase it. And now we're there was differing testimony on how much we should increase it, various gradations, to increase it from some, based on size, maybe $125 for medium mines; 275 for large mines; that was one of the set of testimonies Tuesday.
But, quite frankly, if you can listen to yourself, you and the United Mine Workers are saying the same thing: Don't delete the single penalty. Really you are. I mean, quite honestly, if I wanted to close the record today and go forward to drafting the final rule, you know, I might have the single penalty I might recommend to keep the single penalty: The entire mining industry was in agreement on keeping the single penalty.
(Applause.)
MS. SILVEY: Okay. Go ahead. That was a little humor, everybody. You all know I'm from Alabama.
MR. STONE: I'll just go back to your comment, if I could just make one point one small comment. That is, you mentioned why not look at the record of when we've had the two increases in penalties. These were to account for basically inflation. And the problem is that the real cost of penalties, taking into account, taking out the inflationary effects over time, is that the real penalties have not changed, so we would not really expect a serious change as we keep making inflationary adjustments; the real penalties have been relatively constant, taking into account just the inflationary increases.
MR. HENSLEY: I understand that, but the theory was and the elasticity number is driven by the fact that the theory is a 10-percent increase in civil penalties leads to a 3-percent decrease in the number of violations.
We've had two 10-percent increases, and I wonder what those numbers would be. I haven't seen them myself, but that would be kind of a quantitative analysis that I would be interested in, and I may try to run it if I have time. It's taking me a lot of time just to run these numbers here, and we haven't even the numbers that I gave you with the 400 to 500 percent increases that we would see, given the same level of activities we had in 2005 I didn't include special assessments in that; I only had time to run the regular assessments and do the conversions with the formula.
Continuing through the preliminary regulatory economic analysis paperwork, I took our numbers and ran them, at the end of all of these, through the formulas the primary formula that's in a footnote, to find out that what we should expect to see is based on the penalties that we would see, would be a 40-percent decrease in violations, and I think everybody would applaud that, but I don't know if it's actually going to happen. I just wanted to tell you what I found.
Another thing that I found in doing the analysis for three of our mines over the 2003-2005 period is that the citations would fluctuate more than the 8 percent per year or 16 percent over two years that MSHA talked about across the industry, and that suggested to me a possibility that the number of citations is pretty volatile from year to year, and you might not be able to determine a whole lot about what the problem might be in the industry by looking at 8 percent from year to year or 16 percent over two years, just as a possibility.
Sometimes I had a mine go up 20 percent in citations one year and go down 20 percent the next year. But overall our compliance record has improved in the time frame that MSHA noted in the proposed rule.
Because this panel which I appreciate your coming here, by the way; I meant to say that at the beginning and your time solicited comments on a couple of things, I will mention briefly that we do think that if repeat violations of a particular standard are going to be counted in a penalty points calculation, it should at least be scaled to the violations per inspection day, because that's the way history is considered generally under Mine Act 110(I) factors.
And we think it's consistent and apples to apples to count also violations per inspection day under the same standard if you're going to count them twice, which, by the way, we don't agree with.
There was a suggestion of a solicitation of comments over whether non-S&S citations should count or should not count for penalty points or additional enhancement purposes, and having already said that we don't agree with that proposition totally, if you're going to do penalty points, we would encourage the non-S&S citations not be included in that calculation.
It wouldn't matter for some of the most cited standards in a 15-month window anyway, because for 75.400s, for example, you're going to hit 20 points no matter which way you look at it if you include nonS&Ss or S&Ss.
Also it is not clear and I wanted to ask this question. It's not clear in the proposed rule whether non-S&S citations would be eligible for the penalty points. Would they?
MS. SILVEY: It's not clear?
MR. HENSLEY: To me it's not clearly stated in the proposed rule whether non-S&S citations would receive the penalty points as well.
MS. SILVEY: For repeat violations?
MR. HENSLEY: Correct.
MS. SILVEY: Yes. Under the proposal all violations are included. And as you correctly said, the agency solicited comments on whether they should be limited to S&S only.
MR. HENSLEY: Another point that I wanted to make about non-S&S recalculation under the point system is that if increased penalties are supposed to increase operator focus on resolving issues related to those citations, and non-S&S citations are not related to a current hazard, doesn't it stand to reason we would end up spending a lot of time if we're having to increase spending time on resolving non-S&S citations, that we would end up spending that time on resolving those with increased penalties, as opposed to resolving hazardous conditions?
That was poorly worded, and I apologize for that. I just wanted to
MS. SILVEY: If I understand it, the brunt of what you said is that don't we think that more time should be spent on resolving issues related to hazardous conditions?
MR. HENSLEY: Yes. And one of the premises of the proposed rule is that increasing penalties will cause operators to spend more time resolving
MS. SILVEY: All
MR. HENSLEY: -- what was cited.
MS. SILVEY: Right.
MR. HENSLEY: And we're all about complying with the law; it just seems that if we're going to, you know, increase a $60 citation to $807 in this one example or maybe $200 in most examples, it would require us to spend a lot of resources on things that are admittedly not hazardous by definition.
MS. SILVEY: Not significant and substantial.
MR. HENSLEY: Well
MS. SILVEY: Not reasonably serious injury or illness.
MR. HENSLEY: Right. And that's why I said earlier not currently hazardous. I realize that things can become hazardous even though they might not be hazardous at the time they're cited; that's why I said not currently hazardous.
MS. SILVEY: Okay.
MR. HENSLEY: I mean, there are some things, like the cobwebs example, that would probably not be hazardous, depending on the kind of spiders that would be involved.
MS. SILVEY: I hope you don't have a lot of cobwebs citations.
MR. HENSLEY: There was also perhaps a misunderstanding in our interpretation of the good faith, I guess we call it the credit, over time. I understand that our obligation is to comply with the law, and I don't really understand the reduction from 30 percent to 10 percent, because maybe my definition is wrong; the good-faith credit was not only complying with abatement with a violation within you know, by the deadline set by the inspector, but earlier than that; that's what I viewed as an incentive.
And I don't know if maybe I'm misunderstanding what the purpose of that good-faith credit was. Is that
MS. SILVEY: If I I mean, I've got in my mind that right here, but if I remember the wording of the Mine Act, it says within the time set by the inspector, you know, or obviously an extension.
So conceptually, yes, good faith any good faith sort in any instance means doing it you know, some consideration for doing something better, doing it sooner, doing it you know, all kinds of positives associated with doing.
But the good-faith criterion under the statute is applicable when the operator corrects the condition abates the condition in the time set by the inspector. And we just, under the proposal, thought that, you know, in restructuring the penalty point table and, you know, the regular assessment process, that we should reduce that from 30 percent to 10 percent, recognizing that, albeit that it was something that the operator must do, anyway, the law does require that MSHA take into consideration that aspect of the criteria.
MR. HENSLEY: Well, we enjoyed the 30 percent while it lasted.
That was about all the questions that I had and the comments that I had. Thank you again for coming down.
MS. SILVEY: Thank you for your testimony.
Is there anybody else who wishes to speak?
(No response.)
MS. SILVEY: I would appreciate if the persons who spoke
MR. BLANKENSHIP: Can I
MS. SILVEY: Sure.
MR. BLANKENSHIP: This is James Blankenship, president of Local 2245. I want something clarified. These proposed rules are supposed to give operators incentives to do better, to not have violations. Is that correct?
MS. SILVEY: That's correct.
MR. BLANKENSHIP: And if I heard him wrong, that's what I want corrected; didn't want a lawyer to sit here and accept it at 20 percent on 75.400s. They say, We're going to get it no matter what. Why? We shouldn't. Rock dusk cleaning program I mean, he's telling me if I'm wrong, you all speak up, or he can speak up.
He's telling me that, do it; it's not going to work anyway; going into it thinking it's not going to work.
MS. SILVEY: Well, I thought that the 75.400 okay, and I mean, I obviously I don't have to tell you this; I'm not a coal miner. But I've worked in the industry a long time.
It was my he's here; he can speak for himself. It was my understanding that what he was talking about, generally generally, in an underground coal mine and maybe he was saying that you could you know, you work there, so you can tell the workers, when I say that, could be as attentive as they want to be to accumulations of, you know right?
MR. BLANKENSHIP: Correct.
MS. SILVEY: But that most likely in an underground coal mine there will likely be the situation where you're going to go in and find something. I thought that's kind of how I took what he said.
He can make it clear, but he can do it himself. I think that's the only way I thought that, generally speaking, in an underground coal mine, you most likely will find some situation where you will find some accumulation of coal dust.
MR. BLANKENSHIP: But it shouldn't be what it is today. I mean, if
MS. SILVEY: Maybe.
MR. BLANKENSHIP: If these proposed rules are going to say, you know, we're going to fine you a lot more if you don't clean this up, if you don't do this, then me, as a worker, and them, as a supervisor, should say, Okay, we're going to do this; we're not going to have 400 75.400s like we did last year; we're going to narrow it down to 200.
MS. SILVEY: Yes.
MR. BLANKENSHIP: And that 200 might get us below that 20. And that's the reason I wanted to get this clear before I left. If Jim Walters writing off the 20 point already before we even go into this? If we are, this has failed.
MR. HENSLEY: I was using 2005's numbers. I'm not sure I I couldn't really hear what you were asking. I was just using 2005's numbers.
MR. BLANKENSHIP: What you said was, you know, the 75.400s were going to get the 20 bonus points, no matter what we do. I don't agree with that. I mean, if this is supposed to lower citations and lower violations of the law, then that 20 points shouldn't be there.
If 75.400's a problem, then that's something that needs to be address with Jim Walters or whoever. We shouldn't go into this thinking, well, we're going to get those 20 points, so it's going to cost us $800 for a 75.400.
To me, this process failed doing this proposal fails if that's what we're looking at here. And I just wanted to clear make sure I heard I wanted to hear what he said was right.
75.400 can be taken care of; we can rock dust; we can clean up. We can put a cleaning program into place and not have those. We're going to get some, yes; we're going to get some citations no matter what you do, but to say I'm going to get I got 400 in 2003 and '4, I'm going to get 400 in 2006 is the wrong attitude to have.
I just want to make everything clear.
MR. HENSLEY: Well, just speaking as the company's attorney and in my role as that, I was using 2005's numbers, which indicated that the mines that I worked at would hit their 20-point maximum at about three months of the 15-month window.
And looking at it that way, I didn't see the levels of reduction that will be required would certainly be in the out years, as you said earlier. And I'm not on the side of the there are a lot more people than me in our safety departments, a lot of them former union safety committeemen that we've brought on to try to increase our focus on compliance that spend every day trying to figure out how to do prevention, like what Mr. Blankenship was talking about; he works with them every day.
And I applaud those efforts. I'm simply looking at what data that I had to look at, and when I saw that we were hitting our limit in three months, it was kind of depressing.
MR. BLANKENSHIP: That's the reason I want to make it clear what we're saying.
MS. SILVEY: I understand.
MR. BLANKENSHIP: Maybe you got the wrong guys.
I appreciate it.
MS. SILVEY: Thank you.
Anybody else?
(No response.)
MS. SILVEY: At this point, then, what I was going to do is, for persons who testify and didn't sign up on the attendance list, if you did not sign up on the attendance list, if you wouldn't mind, just make sure that you sign up I don't mean the attendance list; I mean the speakers list. Make sure you sign the speakers list, just to have because the speakers list, we do put it in the record, so if you would make sure you sign, I'd appreciate that.
And if nobody else wishes to speak, then, again I want to thank everybody first of all, I want to thank those who came and spoke, and then I want to thank those who were in attendance, who showed that they have an interest in this rulemaking.
I want to say, on behalf of all the panel members here, that we appreciate your constructive, your innovative, and your meaningful comment, and as we proceed through the rulemaking process, we've clearly got some comments today that we're going to have to take another look at what we proposed.
And as I said, that's the real meaning of notice-and-comment rulemaking. So as we proceed for the remainder of the hearings and after we close the record, we will start quickly drafting the final rule and hopefully we'll have something out in December, and we will use some of what you gave us today.
So right now what I'm going to do is I'm going to close the hearing, but we are going to be around I'll probably come back here at one o'clock, to make sure if any shows up and anybody wishes to speak, then what I'll do is reopen the record, but if nobody comes back, then I will not reopen the record and we will close it right now. Thank you very much.
(Whereupon, at 12:20 p.m., the hearing was concluded.)
//
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REPORTER'S CERTIFICATE
IN RE: Public Hearing on Proposed Rule Criteria
and Procedures for Proposed Assessment
of Civil Penalties
DATE: September 28, 2006
LOCATION: Birmingham, Alabama
I hereby certify that the proceedings and evidence are contained fully and accurately on the tapes and notes reported by me at the hearing in the above case before the U.S. Department of Labor Mine Safety and Health Administration.
Date: 10/3/2006
Brenda Thompson
Official Reporter
Heritage Reporting Corporation
1220 L Street, N.W.
Washington, D.C. 20005
??
TRANSCRIPT OF PROCEEDINGS
HERITAGE REPORTING CORPORATION
Official Reporters
1220 L Street, N.W., Suite 600
Washington, D.C. 20005-4018
(202) 628-4888
hrc@concentric.net
Heritage Reporting Corporation
(202) 628-4888